Manjula & Bahri

[2021] FedCFamC2F 386

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Manjula & Bahri [2021] FedCFamC2F 386

File number:	MLC 3983 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	11 November 2021
Catchwords:	FAMILY LAW – interim parenting – transfer to division 1 of the Federal Circuit and Family Court of Australia – allegations – mother’s therapist should not be children’s therapist – allegations of family violence.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Goode & Goode [2006] FLC ¶93-286.
Division:	Division 2 Family Law
Number of paragraphs:	28
Date of hearing:	11 November 2021
Place:	Melbourne
Solicitor for the Applicant:	RRR Lawyers
Counsel for the Respondent:	Mr S Foo
Solicitor for the Respondent:	Peninsula Community Legal Centre

ORDERS

MLC 3983 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MANJULA

Applicant

AND:

MS BAHRI

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	11 NOVEMBER 2021

THE COURT ORDERS THAT:

BY CONSENT:

1.That for the purpose of these Orders, the relevant documents are as follows:

(a)All Affidavits, Applications, Responses filed by the parties, including the Affidavit of Ms E dated 18 August 2021, Affidavit of Ms F dated 10 November 2021, the section 11F Report dated 2 November 2021, the section 67Z Response dated 27 July 2021 and the documents released under subpoena from Victoria Police pursuant to any usual undertakings as required by the court. 

2.That the Mother continue to attend her own separate counselling sessions.

3.That the Father complete a Men's Behavioural Change Programme and provide a Certificate of Completion to the Mother's solicitors.

4.That without admitting the necessity for such an Order, the parents forthwith do all acts and things necessary to attend upon a psychologist as agreed between the parties in writing and in the absence of agreement, Dr C from D Psychology, or as nominated by the Independent Children's Lawyer for the purpose of the preparation of a psychological assessment, including the additional family violence risk assessment component, and that:

(a)The psychologist be requested to address:

(i)The parents' history (including relevant medical history;

(ii)Either parent's psychological and emotional health and functioning;

(iii)Any relevant diagnosis or description of the either parent's personality, presentation or functioning;

(iv)If appropriate, suggested treatment or management, and the likely prognosis; and

(v)Any incidents of either parent's functioning that may be relevant to their capacity to parent and meet the needs of the children.

(b)That Victoria Legal Aid is requested to fund both assessments for the parents, including the additional family violence risk assessment component; and

(c)That parties be permitted to provide Dr C with a copy of all relevant documents.

5.That the Father enrol in and complete a Parenting After Separation Course and Tuning in to Kids program and provide a Certificate of Completion to the solicitors for the other party, and the Independent Children's Lawyers.

BY THE COURT:

6.That the children X born in 2009 ("X") and Y born in 2012 ("Y") (collectively "the children") time with the Father, both in person and via telephone/video calls be suspended in the interim.

7.That the Father refrain from sending text messages, emails, or otherwise contacting the children.

8.That the children continue to attend counselling sessions with someone other than Ms E as agreed, and in the event of a dispute as nominated by the ICL, and:

(a)Leave is granted for the parties to provide to the nominated Counsellor a copy of all the relevant documents; and

Appointment of Independent Children's Lawyer:

9.Pursuant to section 68L(2) of the Family Law Act 1975 the children X born in 2009 and Y born in 2012 ("the children") be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

Transfer to Division 1:

10.This matter be referred to the National Assessment Team for transfer to Division 1 of the Federal Circuit and Family Court of Australia, on a date to be advised, noting that the following criteria are identified:

(a)The case appears factually complex;

(b)If the matter proceeds to final hearing it is likely it would take more than 4 days of hearing time;

(c)There are a number of witnesses;

(d)Both parents require the assistance of Arabic Interpreters; and

(e)The final hearing would not be able to be accommodated until February 2023 in this Division.

AND IT IS NOTED that the matter requires a further interim defended hearing in April/May 2022 after the release of Dr C's report.

AND THE COURT NOTES THAT:

A.The Court makes no finding that the parents' parenting is deficient to warrant Orders for them to attend post separation parenting courses and is not compelling the Mother to undergo the post separation parenting course or Tuning into Teens at this stage.

B.The Father disputes some of the facts raised in the section 67Z report and denies he breached the Intervention Order and says he has not been charged with any breaches of Intervention Orders.

C.Both parties require the assistance of Arabic Interpreters.

D.Pursuant to ss.65DA(2) and 62B of the 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 are set out in Annexure A and these particulars are included in these orders.

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s102NA 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).

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 a pseudonym Manjula & Bahri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are settled ex tempore short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These proceedings concern the best interests of X and Y. X is 12, and Y is eight (collectively known as ‘the children’). The applicant father, Mr Manjula (‘the Father’), is 44; and the respondent mother, Ms Bahri, (‘the Mother’) is 34. The parties migrated to Australia after the children were born. The parties married in 2007, and separated in December of 2020.

2. There was a safety notice issued on or about 10 March 2021 for the protection of the Mother and the children.  The Father issued proceedings in this Court on 12 April 2021.  On 17 May 2021 the Father was charged with criminal charges of assault against the Mother.  Those matters first returned to Court on 10 October 2021 when the Father was unrepresented, and will be listed for directions or mention on 9 February 2021.  The Father told me he intends to plead not guilty to those charges.

3. The matter returned to this Court (as it then was) on the first occasion of 16 June 2021.  On that occasion, orders were made by consent, including an order that the parents have equal shared parental responsibility, and orders were made for supervised time.  I mention that because it is the Father's case that the children's now demonstrated attitude to him, as reported to various professionals, is as a result of what is loosely described as alienation, or what could be put more neutrally as the children's exposure to the Mother's attitude to the Father.  The Father posits that the Mother may be jealous in regard to him having a relationship with another woman during their marriage.  A relationship, I might add, he has deposed to deeply regretting.

4. The other aspect is on 16 June 2021 the matter was adjourned for interim hearing, effectively for review before me.  Following those orders a number of events occurred.  As is recited in exhibit C1 (the section 67Z response from the Department of Families, Fairness and Housing), on 15 July 2021 the children were interviewed at school by Child Protection, and on that day the older child described to Child Protection an abusive relationship between herself and her Father and also observing abuse of her Mother, an incident of assault upon her and a strong statement that she did not wish to see her Father.  At that time, or it appears from that time, the younger child told the Child Protection that he loved his Father but was angry with him, and it was observed that he was confused as to what he had observed and what he has been told.

5. It was recommended in that section 67Z response, dated 29 July 2021, that the children engage in therapeutic services.  The Mother had commenced to consult a psychologist for her own support, one Ms E (‘Ms E’), a well-qualified psychologist, and the Mother had commenced consulting Ms E from about 3 April 2021.  I infer unknown to the Father, X commenced to consult that same psychologist in or about late May 2021.  Y has not yet been able to see or engage in therapy with a psychologist or Ms E. 

6. That the child, X, was consulting with the same psychologist who had previously, and continued, to consult the Mother, was not known to the Father until this day, when it was properly and candidly advised to me by the Mother's counsel.  I am grateful to him and to the Mother for providing me with that information.  It had been, up until that revelation, common ground that the children would continue with the counselling under way.

7. In addition to the section 67Z response, the Court has the further information contained in the section 11F child inclusive conference memorandum (‘the memorandum’).  That memorandum arises from very recent interviews.  Paragraphs 20-26 of the child inclusive memorandum are recited below: 

   X aged 12

   …

   20.Throughout the interview X presented as fearful of her father, recalling memories of times she has been exposed to incidents of significant physical and verbal violence perpetrated by Mr Manjula towards Ms Bahri. She further advised there were times this abuse had been directed towards her, confirming that he has previously “pinned her down and choked her”. X advised that she had never felt safe in the family home, prior to her parents’ separation.

   21.X advised that she does not want any form of communication or spend time to occur with Mr Manjula, clearly reporting that even if this was supervised it would cause her significant anxiety. Considering X’s presentation was consistent with someone who was suffering with significantly low mood, or possibly depression the writer asked X some more in-depth questions about her emotions. X reported that she is currently working with a psychologist, acknowledging that she regularly feels sad, and feels unable to change this. She reported no thoughts of self-harm or suicidal ideation, however expressed trouble getting to sleep, not wanting to eat and enduring low motivation.

   Y aged 8

   22.Y is an 8 year old boy who initially presented as hesitant, reporting that he was scared to speak with the writer. Considering this, Ms Bahri remained present whilst the writer introduced herself, and left when Y was feeling more comfortable. Y was a softly spoken child, and provided only short, and mostly non-descript answers.

   23.When asked about his father, Y attempted to answer, however started crying and was unable to speak. When he was able to compose himself, he described Mr Manjula as a scary man, reporting high levels of fear should he have to spend time with him. Y further disclosed that he has nightmares about his father killing his mother and sister, leaving him without a family. Y was highly resistant to the idea of engaging with a therapist, reporting that he did not want to speak about these topics and thought his feelings would get better with time. 

   Issues for the children

   24.Ms Bahri gave a compelling account of the parties’ relationship, presenting as genuinely fearful, and relocating to an undisclosed location, even though this has move highly disruptive due to safety fears that Mr Manjula potentially poses.

   25.The history outlined, in addition to the children’s presentation is indicative that X and Y have likely been exposed to family violence. It is possible that this has had a significant impact on their emotional development trajectory, including their current capacity to feel safe and settled. Considering this, the children require a period of time to heal and repair, which will allow them to begin processing their experiences.

   26.The children are highly resistant to spending time with Mr Manjula, and this is potentially a direct result of their experiences. Implementing spend time between Mr Manjula without the children firstly being emotionally receptive to this, could be more damaging for this relationship, and its potential to be re-established in the future. At this time, X and Y would likely benefit from being freed of the expectation on them to see Mr Manjula, and instead focus on therapeutic intervention.

8. The Father recently filed material responding to the Mother's June affidavit, and that material demonstrates that between about the time of separation and up until either the 21 or 25 February 2021 (and nothing turns on it) a very frequent and, on its face, very affectionate communication between X and the Father, and not just on an occasion, but over and over.

9. The communication between the Father and the then 11 year old child can only be described as affectionate and close.  The Father points to the circumstance that that communication by text messages was followed, he says, by telephone communication of a similar nature up until about the time of the safety notice, and he points to, and asks me to infer, that the involvement of the safety notice process has interfered with his relationship with, firstly his daughter, and secondly his son. 

10. This is an interim hearing, and I am endeavouring to follow section 82 of the decision of Goode & Goode [2006] FLC ¶93-286. I cannot make determinations of fact in regard to contested hearings and contested facts.

11. The Mother's affidavit sets out in compelling detail many incidents of serious family violence.  Those allegations are similar to what the child, X, has told Child Protection in July 2021, and what both children have told the Court Child Expert on 1 November 2021.  Further, consistent with that, or sufficiently consistent for my purposes today, is the affidavit of Ms E filed on 18 August 2021, which sets out Ms E's view of the therapy as treating psychologist for X.  The third and fourth paragraphs of Ms E’s statement annexed to her affidavit state as follows:

    X has strongly asserted that she does not want a relationship with her father. She expressed high anxieties about seeing or even speaking to her father over the phone.She stated that her father has a tendency to raise his voice and start conflict unnecessarily; and she does not feel safe around her father. She stated that if her father does attempt to call her that she would reject the call or hang up on him.

    She has stated that she does not feel like her anxieties about her father would be comforted even if her father were to engage in counselling, anger management programs or men’s behavioural change programs because she feels like any change from her father would be “an act” and not genuine change. She stated that neither she nor her brother have ever had a positive relationship with their father. She reported that their father did not spend any time with them; and on the rare occasion he did the experience would be negative.

12. The Father's affidavit that he filed annexing the text messages has been filed after the section 11F child inclusive conference memorandum, after the Child Protection interview, and after Ms E has prepared her document.  There is no evidence that any expert or professional has had the opportunity to turn their mind to what are the otherwise affectionate communications between X and the Father, demonstrated by the text messages.  Further, the Father's affidavit recites, or includes photographs that, on the face of those photographs, demonstrate a close and affectionate relationship.

13. The timing of these events, that is, the cessation of the Father's communication with X following the safety notice and the involvement of police and Child Protection authorities, cannot, on this interim hearing, persuade me one way or the other, and were I to press either Ms Pham or Mr Foo, each would be able to argue how those events are consistent with their client's case, and I make no such finding.  But it is a fact that there is no evidence of that communication being considered by any expert.  It is also unclear to me whether Ms E was ever aware of such communication.

14. Further information is available from the report of Ms F (‘Ms F’).  What is clear is that at the expense of the Father, there was an attempt at professionally supervised time by a service that is widely regarded as competent and able to safely support children in a supervised setting.  What the report of Ms F sets out is that the service was unable to make the supervised time happen, and the supervisor was told by X that bad incidents had occurred with her Father, and also with her Father and Mother, and that she did not want any contact with her Father.  The second and third paragraphs of page 7 of 8 of the report form Ms F is set out below:

    She told me she is in Grade 6 and wants to be a psychologist. She had something in her hands (I couldn’t make out what it was, it was fairly long and looked rubbery) and she was twisting it nervously throughout our conversation. I explained my role, to supervise meetings, make sure the children involved were safe and enjoying their time. I advised I could terminate a meeting if I saw the need, the idea of the visit being for the children to be happy and enjoy themselves.

    Rain said bad incidents had occurred in the past that involved her father and her, and also her father and mother. She said she didn’t want any contact with her father. We chatted a bit more and then Ms Bahri called her son over. He looked tense too, and said he didn’t want to see his father at all either.

1. The Father concedes there are serious problems, and as such, seeks that the previous supervised time now proceed by way of family therapy.  Mr Foo, on behalf of the Mother, says that the strength of the children's wishes, and the nature of the abuse that he says they have suffered, indicates that that time should not proceed at this stage.  I simply cannot make all the necessary findings today, nor do I simply follow someone else's opinion (who is not before the Court) as to what has occurred.

2. It is clear enough that the Child Protection authority from the section 67Z response proceeds on the basis that the events as described by the Mother have, in fact, occurred.  I do not proceed on that basis, and the law prohibits me from doing so, however, there is an unacceptable risk that the events as described by the mother may well have occurred, and there is an unacceptable risk that to continue with the children spending time with the Father, even in the context of therapy, which is itself a very supervised regime, is contrary to the children's best interests.  So I will not order the family therapy at this time. 

3. I agree that there should be a review, which would include whether there should be supervised time, whether there should be therapy, whether there should be unsupervised time, should be in or about April of 2022. 

4. The other significant issue that was in dispute, and that only came about when the Father learned this morning that the counselling for the children that he was asked to consent to, and had agreed to, was with the Mother's counsellor.  Mr Foo has very properly raised with me the serious nature of interfering with the therapeutic relationship between the child, X, and her therapist, Ms E.  Mr Foo seeks that the therapy for X and Y continue with Ms E, and following discussion with me where I raised with him whether that was appropriate, quite generously in my view, the Mother has changed her position to say that she would change therapists, but that because of the difficulty in establishing a therapist for X, that X should continue with Ms E.

5. I am alert to, and concerned about, the serious impact upon X's welfare of interfering with that therapeutic relationship that she now has with Ms E.  I assume, and proceed on the basis, that Ms E is a competent professional.  Having said that, I do not understand how Ms E could prepare a report dated 21 June 2021, attached to an affidavit sworn/affirmed on 3 August 2021 and filed on 18 August 2021, whereby she provides to the Father and the Court a report in regard to X's therapy and X's position, and does not refer to or acknowledge that prior to X being her patient, the Mother had been her patient.  In my view, and it is my finding, in the particular circumstances of this case and the matters that are in issue, it is not in X's best interests that she continue to receive therapy from the therapist who is providing therapy to her Mother, or to continue therapy with the therapist that has previously provided ongoing therapy to her Mother. 

6. This is because of the risk of a therapist conflating the Mother’s experience with the child’s experience causing the utility of the therapy to be eroded.  The risk is readily apparent were the prospect of the child attending the Father’s therapist to be contemplated.[1]

   [1] This paragraph has been added when settling the ex tempore reasons.

7. So my ruling is that I will grant the application, or effectively the determination, that the ongoing therapist for X should be a different therapist, and in the event of a dispute between the parents, should be a therapist as nominated by the Independent Children's Lawyer. 

8. The further conduct of this case is such that I am going to refer the case to the National Assessment Team of the now combined Courts and transfer the matter to Division 1 of this Court, and that is because of the likely complexity and duration of the case.  It may resolve, it may only proceed on limited issues, but certainly, if it proceeds on all of the issues that have been alive before me today, it appears to me to be well nigh impossible for the matter to proceed over Microsoft Teams and be contained to three or four days, which is the outer limit of cases to proceed before me.

9. I note that neither party sought to transfer the matter to the other division, and there can be no suggestion that either party is seeking some form of jurisdiction shopping or tactical advantage.  It was because of my concern at the potential length of the final hearing that I raised this issue.  Witnesses could include the writer of the section 11F report, the Child Protection worker or workers who spoke to the children in July, Ms E as the Mother's therapist and as the therapist for X up until this time, the Mother and the Father, and a family report writer, and/or Dr C (‘Dr C’).  In addition, the Mother or the Father may, not necessarily will, call other witnesses.  When both parties require the assistance of an interpreter, experience tells me, whether on Microsoft Teams or in person, that that is stretching the bounds of possibility to keep the case within three days, or even four.

10. For all of those reasons, and because of the complexity of the issues in the case, I have determined that I will transfer the matter for referral to Division 1, with a notation, or request, that the matter be listed for further interim hearing following the release of Dr C's report in or about April or May of 2022.  I also note that were the matter to be fixed for final hearing before me, I would not be fixing it before February of 2023, given the number and nature of the other 320-odd cases in my docket, and I personally want to say to the parties I regret that circumstance, and regret that I cannot keep the matter before me and have a hearing well before way out then.

11. Another dispute was the nature of the documents that should be provided to the children's counsellor and/or Dr C, and the Father objects to the section 67Z response dated 29 July 2021 going to either of those persons, because of what appears to be the difficulty of determining whether matters are reported as allegations or as findings of fact by the Child Protection practitioner.  In particular the paragraph on page 2 of 3 which states:

    On 27 July 2021 a family violence portal check was conducted and confirmed there have been 8 L17 reports with Mr Manjula the respondent in all incidents. 3 of the reports are due to breaches of the intervention order due to his use of social media in attempting to contact Ms Bahri. Mr Manjula was frequently attending the family home following the parents separation, causing the family to be fearful. An Intervention Order was made however Mr Manjula continued to attend the home, attempt to contact Ms Bahri and made threats to kill her should she leave him.

12. The Father strongly asserts he has not breached any intervention order, and he has not been charged with any breach of any intervention order.  He denies all of the allegations against him.  I will note in this order that the Father asserts that the section 67Z response contains statements that are controversial or disputed, and that he asserts he has not breached any intervention order or been so charged.  However, in my view, it is important that those professionals involved in the case have all of the relevant information in the raw.

13. Rather than set out twice the documents to go to the children's counsellor, (which will now not be Ms E) and to go to Dr C, I would ask counsel and solicitor to redraft the orders to give effect to these reasons with a statement somewhere at the start saying, “For the purpose of these orders the following documents are referred to as 'the relevant documents',” and then each of the orders referring to Dr C or the child's counsellor will simply refer to the relevant documents.

14. My ruling is that whilst paragraph 7 of your order, Ms Pham, should be that only the Father should attend those courses, the minutes of orders should note that there is no finding that either parent's parenting is deficient and requires a course.  I will not compel the Mother to do it at this stage because she has enough on her plate with sole parenting, school, her own counselling, and X and Y's counselling, but such education may well assist her in the future, and she may well choose to do it, if for no other reason only to know about the type of information that the Father has been provided.  I will ask that you both note that is the context in which I am not compelling the mother to do that.  The Independent Children’s Lawyer may take a different view, in which case the issue would be alive on another occasion.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       16 November 2021