Losif & Losif (No 2)
[2024] FedCFamC1F 835
•21 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) 1
Losif & Losif (No 2) [2024] FedCFamC1F 835
File number(s): BRC 3570 of 2019 Judgment of: HOWARD J Date of judgment: 21 November 2024 Catchwords: FAMILY LAW – PARENTING - parental responsibility – where s 102NA applies – where the matter has a long and complex history - where a recovery order was previously executed – where the children have not seen the mother since April 2024 – where an Order had been made that neither party and no third party seek the children's views – where a third party asked the children their views – where the Family Report writer recommends time and communication with the mother is suspended on an interim basis – where time Orders are suspended – where telephone communication with the younger children is permitted – where the matter is set down for final hearing Legislation: Family Law Act 1975 (Cth), ss 65DAAA, 102NA(1)(c)(iv)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 8.15(3)(e)
Cases cited: Rice v Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 21 November 2024 Place: Brisbane Applicant: Litigant in person Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: Seth Solicitors ORDERS
BRC 3570 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LOSIF
Applicant
AND: MS LOSIF
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
21 NOVEMBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Order of Judge Tonkin dated 13 October 2022 (as varied by Justice Jarrett on 20 December 2023) are suspended and the Orders of Senior Judicial Registrar McNamara dated 18 April 2024 are also suspended.
2.That the Father shall have sole parental responsibility for the children W born 2009, X born 2011, Y born 2014 and Z born 2018 (“the children”).
3.That in exercising sole parental responsibility the Father shall advise the Mother in writing about any long term decision the Father intends to make with respect to the following:
(a)The school or schools the child and/or children attend;
(b)Any medical treatment with respect to any illness, condition or disability; and
(c)Any decision about religion;
4.That the Mother shall provide a response in writing to the father within seven (7) days of being notified expressing her view (if any) in relation to any long term decision the Father proposes to make with respect to the matters referred to in Order 3 hereof.
5.That the Father shall take into consideration any view expressed by the Mother in relation to any long term decision the Father proposes to make with respect to the matters referred to in Order 3 hereof and thereafter the Father shall make the final decision and communicate that decision to the mother.
6.That the children shall live with the Father.
7.That the children shall spend no time with the Mother and have no communication with the Mother save for time as provided in the orders herein.
8.That the Mother shall communicate with the children Y born 2014 and Z born 2018 by Microsoft Teams, Zoom or any other video conferencing system on the second Wednesday and the last Wednesday of each month with the Mother to initiate the call at 5.30pm (AEST/QLD) and ensure that the call is recorded and lasts no more than 15 minutes.
9.That to give effect to these orders the parents must download the Microsoft Teams Application within seven (7) days of this order and advise the Independent Children’s Lawyer that they have done so.
10.That the Father is to give the children privacy during the calls and ensure that no other person is present during the time including but not limited to the older siblings W born 2009, X born 2011, the Father or the Step-Mother.
11.That the children W born 2009, X born 2011 are to spend time and communicate with the Mother in accordance with the wishes of those children.
12.That during the time the children are communicating with either parent, that parent shall:
(a)Speak of the other parent respectfully;
(b)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child;
(c)Be restrained from discussing the children’s health;
(d)Not seek the children’s views with respect to the proceedings or with respect to any adult issue nor allow a third party to do so; and
(e)Not involve the children in adult conversations.
13.That the Mother is permitted to send gifts and cards to the children for their birthdays and Christmas.
Trial Directions
14.That these proceedings be set down for final hearing for not more than three (3) days commencing at 10.00am on 16 June 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane before the Honourable Justice Howard.
15.That the remainder of the Application in a Proceeding filed 5 September 2024 and the Response to an Application in a Proceeding filed 15 November 2024 be adjourned to the final hearing. A consideration of s. 65DAAA of the Family Law Act 1975 (Cth) (formerly known as the rule in Rice v Asplund (1979) FLC 90-725) is also adjourned to the first day of the final hearing.
16.That in the event a party or a party’s lawyer fails to comply with an obligation imposed by these Orders (or any part of these Orders) then at the final hearing commencing on 16 June 2025 the Court shall consider:
(a)Making a costs order against a non-complying party; and/or
(b)Proceeding with the matter on that day as an undefended hearing.
17.That the parties and their legal representatives shall personally attend Court for the final hearing commencing on 16 June 2025.
18.That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 19 May 2025.
19.That each party shall file and serve on each other party no later than 4.00pm on 19 May 2025:
(a)one (1) consolidated Affidavit of evidence in chief of that party;
(b)one (1) Affidavit of each witness intended to be relied upon at the trial.
20.That any Affidavit filed in accordance with the preceding Order shall:
(a)have any annexures which the deponent may refer to in the Affidavit attached to the Affidavit;
(b)contain an index of any attached annexures; and
(c)be paginated from the commencement of the Affidavit through to the end of the attached annexures.
21.That in the event that documents are annexed to an affidavit, attention is drawn to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
22.That each party shall file and serve on each other party no later than 4.00pm on 2 June 2025, a Case Outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a list of the issues which each party asserts that the Court needs to determine at the trial; and
(d)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial. This order is subject to the orders contained in paragraphs 19(a) and 19(b) herein.
23.That no party shall be entitled to rely upon any Affidavit not filed in accordance with these orders without the leave of the Court.
24.That should either party wish to raise any objections to evidence – such party shall file and serve a “Notice of Objections to Evidence” (containing a list of objections) at least fourteen (14) days prior to the commencement of the final hearing.
25.That in the event that a party wishes to cross examine the Family Report writer/single expert at the Final Hearing, that party shall provide written notice to the family report writer/single expert of such intention as soon as reasonably practicable, but by no later than 4.00pm on 19 May 2025.
26.That should either party wish to request the provision of an interpreter by the Court – such party shall contact the Court via email…@... as soon as reasonably practicable, but by no later than 4.00pm on 19 May 2025.
27.That the parties shall be prepared to make oral submissions to the Court at the conclusion of the evidence at the final hearing.
Section 102NA of the Family Law Act 1975 (Cth)
28.That pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975 (Cth):
(a)The Applicant not be permitted to personally cross-examine the Respondent; and
(b)The Respondent not be permitted to personally cross-examine the Applicant.
THE COURT NOTES:
A.That should an earlier date for a final hearing become available before the Honourable Justice Howard, consideration will be given to the matter being listed on that earlier date.
B.That because an order has been made in accordance with s. 102NA of the Family Law Act 1975 (Cth) (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party.
C.That the Father and the Mother should apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (‘the Scheme’) for representation and any such application must be made at least 12 weeks prior to the final hearing.
D.That further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.That if s 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J
These reasons were delivered ex tempore on 21 November 2024 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is a parenting case involving four children: W, born 2009, X, born 2011, Y, born 2014, and Z, born 2018. The case has a long, complex and most unfortunate history. There was a trial before Her Honour Judge Tonkin, in July 2022. Judgment was delivered in October 2022. By those Orders that were made by Her Honour at that time the children were ordered to live with the father. The father was granted sole parental responsibility.
The children were to spend time with the mother supervised originally then unsupervised. It does not appear that those Orders encompassed any overnight time with the mother. That was October 2022. It seems to be the case that for a period of about 10 months those Orders worked up until August 2023. The mother held the child Z over at that point. The mother said, “I really needed to get him to see a doctor”. The mother considered that the child needed medical attention, and she considered that the father was not obtaining the medical attention for the child.
The father obtained a recovery order but the mother returned the child before the execution of that order. Then the matter went before Justice Jarrett. By that stage the matter had been transferred from Division 2 of the Federal Circuit and Family Court of Australia to Division 1. His Honour considered what was essentially an Application to vary final orders. His Honour dismissed the Application and His Honour dismissed a cross-Application from the mother seeking a different variation to the final orders. The matter at that point was at an end.
Not long after that decision was delivered by His Honour on 15 December 2023 - the mother held the child, Z for almost two months between 23 December 2023 and 15 February 2024. The mother again took the view that the child needed medical attention and the mother took the view that the father was not obtaining that medical attention for the child. The mother's conduct in holding the child over at that point was, of course, not the approach that she should have taken.
If the mother considered that the child needed medical attention, the mother should have filed and served an affidavit and an Initiating Application, seeking an order from the Court. As it was, it took a while for the mother to get the child before a doctor. She took the child to Sydney where the child saw Dr L, a paediatrician at Suburb N and the letter from that paediatrician is annexed to the mother's affidavit filed 16 February 2024. The father says the mother was untruthful in what she told the doctor because the doctor was told that Z's coughing was worse at night, but the father says the child was not with her at night. But by the time the child saw the doctor in Sydney in January of 2024 the child had indeed been with the mother at night. The doctor must have thought there was some issue with the child because the doctor, a paediatrician, prescribed medication for two weeks and recommended a referral to a paediatrician in Brisbane for follow-up. The father told me from the bar table that he took the child to a GP.
The father maintained there is some earlier or other letter which permitted him to discharge the child into the care of a GP. In fact paragraph 7 of the letter from Dr L that I have referred to says, “GP to refer to Brisbane paediatrician for follow-up”. Unless there is another letter that says Dr L's opinion has changed and she no longer considered that the child needed to see a Brisbane paediatrician the father's so-called objection that I have just heard in the courtroom is not helpful and without proper foundation. I will leave that to one side. The point is that by the time the mother took the child to see the doctor in Sydney, a specialist, there was something wrong with the child. The father from the bar table said this was only normal childhood conditions. I do not know that and the father is not a doctor so it seems to me that if there is going to be a dispute between these parents about medical issues what is needed is medical evidence. I do not want to just be told what the GP said or did. Apart from anything else - the paediatrician in Sydney wanted the child followed up by a paediatrician, not by a GP.
Now the harm that was caused in getting this boy to the doctor is where the real trouble is for these children and for this boy in particular. Now I am addressing the mother. The evidence is that there were several attempts by the police to recover the child and the police were eventually successful. Even if there was only one attempt to recover the child that would have been traumatic for the child. I am very concerned when I have regard to some of the findings by Judge Tonkin and when I note some of the evidence from the latest Family Report of Ms M. I am very concerned that the mother appears to lack the insight into the emotional harm that is or could be caused to the child Z and indeed to the other children by the mother holding Z over. As I said earlier in these reasons - if the mother had a concern - and frankly it appears to be legitimate because Dr L says there was a medical issue - she should have brought it to the Court and not taken matters into her own hands. That is why this family finds itself in this position.
If the mother had brought the matter to the Court, the Court, it seems to me, would always err on the side of caution and order the child be taken in Brisbane to a paediatrician and not upset his routine. The mother should not have held him over for almost two months away from his father and his siblings. There is no doubt from what I read in the notes of O Family Services where they have had discussions with the children – young Z, for instance, indicated it was a traumatic experience and there is Ms M's evidence also of the views of the children, including Z. Of very great concern to the Court is something I mentioned earlier today which is the fact that the view that has been taken by this particular Family Report writer, Ms M, is that these children have been involved in these proceedings. The children have been involved in the proceedings not by the Court but by the father and the mother. It is not the Court's obligation to raise these children; it is the parents.
I point out paragraph 314 of Ms M's most recent report where she sets out her concern that there is a long history of these children being involved in the parental dispute. In any event what took place in December 2023 and January 2024 catapulted the matter back into the Court. It was before Senior Judicial Registrar McNamara in Sydney. And the Senior Judicial Registrar made an Order which I note was made with the consent of the parties on 18 April 2024 suspending the Orders of Judge Tonkin and then putting in place an interim Order, with the consent of the mother and the father, for supervised time at a contact centre. There has not to this date been any time spent between the children and the mother at a contact centre. Now P Contact Centre were apparently designated as the appropriate contact centre and the Independent Children’s Lawyer seems to have been the person - that is Mr Seth. He is the person who made the arrangement and the children were taken along.
This contact centre is run by O Family Services and the children were interviewed by an employee of that centre and the children, all four of them, expressed the view that they did not wish to see their mother or spend any time with her. So, the contact centre said, all right, well, we are not going to facilitate it, and that was that. What concerns me is that we already know that there has been a long history of involving the children in the dispute, and we know that Order 8 made by Senior Judicial Registrar McNamara on 18 April 2024 is in the following terms: “8. Neither party shall seek the children's views with respect to the proceedings, nor allow a third party to do so”. That was an Order made with the consent of the parties and the Independent Children’s Lawyer. Nonetheless, when the family got to the P Contact Centre, the first thing that happened was - they asked the children for their views.
Order 8 should have been drawn to the attention of the P Contact Centre and these children should not have been asked for their views. When I reflect on it I am not sure how it is that that order was not drawn to the attention of Ms M. I accept that in preparing a Family Report it is one of the primary obligations of the Family Report writer to seek the views of the children, but in the face of an order like Order 8, what should have happened, was there should have been an application to the Court by the Independent Children’s Lawyer to suspend that order for the purpose of obtaining a Family Report. In any event, I will leave that to one side for the minute. The children did express their views to the Family Report writer. The Family Report writer notes the age of the two oldest children and is content to, or does, in fact, recommend that they are of such an age where it would be very difficult to ignore their views. I agree with that.
The father today on this interim Application seeks two things. That Judge Tonkin's Orders be suspended and that Senior Judicial Registrar McNamara's Orders be suspended and that all time and communication between the mother and the children be suspended. I apprehend he seeks that not only on an interim basis but a final basis. The mother on a final basis seeks that the children live with her. At this point in time there is not one scintilla of evidence to support that outcome. On an interim basis, the mother seeks that the children see her at Q Contact Centre. She seeks further orders as well but the only possible order I indicated that I would be prepared to consider in the light of the evidence and in the light of the long history of the matter was the children (Y and Z) spending time with the mother supervised by the Q Contact Centre for two hours per month. I note that was previously ordered - up to two hours every six weeks was Order 9 made by the Senior Judicial Registrar.
The children have not seen the mother face-to-face, since the making of the orders by the Senior Judicial Registrar. The parties, that is the mother and the father (and the Independent Children’s Lawyer), obviously took the view in April 2024 that supervised time would be appropriate. I am well aware that since then, there is the Family Report, in particular, and there are also those notes from the contact centre. I give much less weight to the notes from the contact centre. I give more weight to the Family Report. The question for consideration at the moment is multilayered. The Family Report is based upon evidence that was placed before Ms M including what the father says about the case, what the mother says about the case, including the history of the mother holding over the child, Z, and including the views and wishes of the children. I have had close regard to those relevant and important parts of that Family Report. The Court has to have regard to the evidence before it. It seems to me there needs to be a further hearing of this case on a final basis to see whether the earlier Orders of Judge Tonkin should be varied or not.
What needs to occur, is a trial at the earliest possible available time. I am endeavouring to find some days in the first half of next year. I apprehend, given the long history that it will need three days at least. I will find three days in the first half of 2025. The question is what should happen in the meantime by way of an interim order. As I say, the Court proposed a possible scenario whereby the two youngest see the mother at Q Contact Centre, supervised once a month or thereabouts. The mother supported that. The Independent Children’s Lawyer opposes it and the father opposes it. I am particularly mindful of what Ms M says in paragraph 324 of her Family Report. That report of course is annexed to an affidavit filed on 2 September 2024. Ms M recommended in that paragraph, as follows -
“That in the interim, all supervised visits and calls are suspended, as this appears to be causing stress to the children. It is noted that the attempts at supervised contact have so far not been successful.”
The point about that paragraph is it is a bit more complex – or more complicated than what Ms M has written.
It is not quite right to say that the attempts at supervised contact have not been successful. I suppose they have not been successful - but that is because the contact centre asked the children their views. The children said - we do not want to see the mother. Hence, the contact centre decided not to facilitate the time. From that respect it has not been successful. The question is whether I am in a position to accept that recommendation to suspend all time and communication with the mother at this stage, or whether there should be some time at the contact centre. The father has told me just now that there is still an ongoing monthly phone call, or thereabouts. The mother says they do not go well because the children will not talk to her on the telephone.
I find it very difficult to get past paragraph 324 of the report of Ms M, where after a long and involved consideration of all of the material and the history she recommends an interim suspension of time. I think the best approach for these children is to suspend time at the moment. I will however make an order that there be once-a-month telephone time and place a priority on the case so that it can get an early trial hopefully in the first quarter of next year, depending upon the Court's calendar. I think that paragraph 324 (when I weigh all of the matters for consideration in the balance) tips the conclusion in favour of suspending the current orders. That is suspending the Orders of Judge Tonkin so far as they relate to time with the mother and suspending the Orders of the Senior Judicial Registrar, so far as they relate to time with the mother and putting in place a separate order for telephone time once a month between the mother and the two younger children.
I would make a further Order that no other person is to be in the room when those conversations take place - not the older siblings, not the father, not the stepmother. The mother is permitted to send gifts and cards to the children for Christmas. The children do not have any birthdays coming up between now and when we will have a trial. If it is considered to be in the best interests of the children after a trial takes place it may be that there is a reintroduction, certainly between the youngest two and the mother and that reintroduction it may take place through the facility of the Q Contact Centre at Suburb R. That will depend upon the findings made by the Court as to how this family managed to get itself into such a mess.
What this essentially means is that the father's Application (for a final variation of Judge Tonkin's Orders and an Order for no time,) - which is really a Rice & Asplund Application - that is adjourned to the final hearing. It means the mother's Application, that the children live with her or have some other arrangement where they spend time with her, - (which would also require a consideration of Rice & Asplund and the relevant legislation) that is also adjourned to the final hearing.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 10 December 2024
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