Radhir and Sondh

[2010] FamCA 1092

FAMILY COURT OF AUSTRALIA

RADHIR & SONDH [2010] FamCA 1092

FAMILY LAW – CHILDREN – Separation of siblings

Family Law Act 1975 (Cth)

APPLICANT: Mr Radhir

RESPONDENT: Ms Sondh

INDEPENDENT CHILDREN’S LAWYER: Mr P Lynch

FILE NUMBER: PAC 1889 of 2008

DATE DELIVERED: 8 November 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Murati

SOLICITOR FOR THE APPLICANT: Mr Allan McMonnies

SOLICITOR FOR THE RESPONDENT: Mohan Yildiz & Associates

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S REPRESENTATIVE

Mr Lynch

Orders

1. That all outstanding applications are adjourned to 8 November 2010 (if not resolved on a permanent basis, for an interim hearing).

2. That the father file and serve an amended application and any affidavit material upon which he intends to rely by 4.00pm on 21 October 2010.

3. That the mother file and serve any response to the application if filed by the father together with any affidavit material upon which she intends to rely.

4. That the husband deliver the child B to the Parramatta Registry of the Family Court of Australia for the purposes of having an opportunity to speak to the Independent Children’s Lawyer in the absence of the father.

IT IS DIRECTED

1. That the Registrar of the Melbourne Registry make the necessary arrangements with the Parramatta Registry.

IT IS NOTED that publication of this judgment under the pseudonym Radhir & Sondh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAC 1889 of 2008

MR RADHIR

Applicant

And

MS SONDH

Respondent

REASONS FOR JUDGMENT

1. This case has a tragic history in this court, and today’s application was listed by me because the original final hearing was not ready to proceed.  Because of the nature of the dispute, I indicated at the time that I would address questions of interim proceedings pending proper preparation and final determination.  One of the difficulties is that the parties cannot even agree on the interim arrangements.  I am asked to work out what should happen for each of these children.

2. I am proposing to set the matter down early in the new year, but I cannot promise the parties that I will be able to hear and conclude the matter before the end of the first school term.  I think the important thing is that an opportunity should be given to the children to have an opportunity to not only learn about each other and spend time with each other, but each child with their respective parents as well.  It is a fundamental principle of Part VII of the Family Law Act 1975 (Cth) (“the Act”) that a parenting order should not be made unless it is in the best interests of the child.

3. The parties cannot agree on what those best interests are for either of these children.  B is 12 and F is 9.  I do not propose to go over the tragic background.  Suffice to say that there has been very limited contact between F, who lives with her mother and spends time with her father, and vice versa in respect to B.  The position of the father is that he should spend time with F, and that B and F should be together, but that there should be no time between B and his mother.

4. The mother’s position is that there should be a limited opportunity for the children not only to be together but, by overlap, that they spend four days with one parent and then the consecutive four days thereafter with the other parent. 

5. Section 60B of the Act sets out the aspirations of the Australian community for all children. I will not set out in detail what those provisions say, but they provide a guide for all of the decisions about determining what is in the best interests of children.

6. Those provisions set out the rights of children to participate in the lives of their parents, but equally, the parents share the responsibilities of caring for those children. 

7. When making a decision which is in the best interests of children, Part VII of the Act requires the Court to consider each of the factors set out in section 60CC. I do not propose to set out those details in full in these reasons, predominantly because the parties have already had the opportunity on a number of occasions in the past where those issues have been canvassed.

8. However, very few of the section 60CC factors have been provided to me in the evidence.  The father’s evidence is set out in an affidavit filed on 21 October.  What he said, in respect of B, was that the child had a poor relationship with his mother.  He went on to say that B did not enjoy spending time with her.  He said that he thought it was important for a child to have a healthy relationship with both parents, but he believed that the mother had caused irreparable damage to her relationship with B, primarily because of her departure to Turkey, where she lived for approximately seven years.

9. He then said it was B who told him that he did not want to spend time with his mother.  Attached to that affidavit is what has been described as a brief psychological report prepared in August 2010 by a Ms J, who is a clinical psychologist.  Ms J said in the report that she spoke to the father and B.  Just exactly what B told her and what the father told her is not clear.  What she reported was that B had demonstrated significant changes in his behaviour, although I am not told from what period of time those changes had occurred.

10. She said that B’s reactions during interactions with his mother were such that he was scratching his face.  She described that as an example observed during B’s most recent trip to Melbourne.  That recent trip had been some months before.  I have to look at that report also in the context of the issues assessment undertaken by Ms C, who is a family consultant of this Court, who less than a year ago indicated that B expressed some interest in having some time with his mother.

11. B showed interest in finding out who his mother was and that appears to have only occurred on the one occasion.  Ms J went on to say that there were indications – again, it does not tell me from whom – that there were no signs of hyperactivity or any significant attention deficit in B.  That is consistent with the school report done in June 2010, which shows that B is progressing extremely well in all facets of his education.  The report has a number of scale notations, and from what I can see, B either achieves on an excellent basis at best, or at worst, on a sound basis.

12. All of those would suggest that he is progressing extremely well.  Ms J also noted that there were no notable regressive symptoms and no reports of misbehaviour in the classroom or of prolonged agitation or distress in his home environment.  She then went on to say that in his most recent visit to his mother in Melbourne, B displayed signs of extreme agitation and distress.  She set out what they were, but again I am not told whether that was on the basis of what B said or his father said.

13. Importantly, none of those statements were tested against anything that might have been the view of the mother.  It is also important, in this case, to note that Ms J did not see B in the company of his sister, F.  The report on that basis must be seen as extremely limited. 

14. In her recommendations, Ms J said that she was only doing this report for Medicare, and therefore that if a more thorough assessment was required, then B would be required to undergo a comprehensive psychological assessment.

15. I am troubled about the fact that this little boy is being put through this, when the reality is that what he needs to do is have an opportunity to find out what he was interested in when he spoke to Ms C almost a year ago. 

16. Ms J went on to say that she recommended that B be referred to a “more appropriate setting for assessment processes”.  I do not know what that means.  The most important part of the report is as follows:

    It is further recommended that contact with his mother is managed so that [B] can cope;  that is, planning and preparation are required, extended interstate visits are to be kept to an absolute minimum, contact within New South Wales is preferable, and that options are presented to [B].

17. Nothing in this report gives me any indication as to how that conclusion was arrived at.  The report does little to assist me in working out what to do. 

18. I am very troubled about the fact that B was showing some signs of self harm as a result of the time being spent with his mother.  The father’s affidavit was filed on 21 October.  On 4 November, the mother swore her affidavit and presumably had an opportunity to see what the father’s position was.  She swore the affidavit in response to the father’s affidavit that was filed on 21 October.

19. She made no mention of the psychologist report, nor of any concerns that she might have about her son’s behaviour.  The mother set out, in very little detail, about the fact that the children were together earlier in the year, and what she did.  She said that B had lots of fun when she took him to the shops.  The children together went on toy cars and on other children’s facilities at playgrounds.  She said that sometimes her friends with children came and spent time with B and they went to visit various places in Melbourne.

20. Much of the rest of her statement is just her perception and not evidence.  However, she then said that on one of the nights that B was in her care, she slept with him.  There is nothing wrong with that, save that she does not say why that occurred.  She said that when he was “falling into sleep, she could feel that he was craving for a mother’s love”.  That statement is meaningless rhetoric.  The mother said that as the child’s mother, she was really worried of his physical and psychological wellbeing.  She said:

    I know that [B] has his own personality, but it appears to me that he is not a happy kid like my daughter, [F].

21. Again, I do not know what that means.  In terms of F, the mother’s position was that F did not like spending time with her father.  Her belief for saying that was that he did not have any involvement in her life until two years ago.  Again, none of this should surprise anybody with any parenting skill or understanding at all.  These children do not have a close and loving relationship with the other parent with whom they do not live, but apropos the matters that I earlier mentioned, these children have a right to find out and be part of those loving and caring relationships.

22. Neither of the parents have set out any material that would assist me to work out those sorts of considerations.  I have been helped in this case by the involvement of Mr Lynch, who is the Independent Children’s Lawyer.  Some weeks ago, when the trial was effectively aborted, I made an order that the father produce B to the Parramatta Registry of the Court so that Mr Lynch could speak with him in the absence of the father.  Mr Lynch said that:

    [B] is an articulate 12 year old, but he is not able to tell me just whether his views are matters to which I should give significant weight, having regard to his level of maturity. 

23. What is clear, however, is that B told Mr Lynch that he did not want to see his mother or ever want to see her again, and considered his grandmother to be his mother.  That is consistent with what the psychologist said about B as well.  B told Mr Lynch that he wanted to see F, but only in Sydney.  All of these matters, therefore, should be taken with a grain of salt.  These children need to be children.  They do not need to be embroiled in what is clearly an adult dispute. 

24. The foundation for a good parent and child relationship in both cases is missing.  Therefore, what needs to be done is that the children have an opportunity to develop a relationship.  It is conceivable that each parent will either rail against that or, in fact, not do anything positive to make it happen.  Now is the final opportunity, I think, for these children to have an opportunity to find out just who their parents are.  Section 60CC, as I said, is a difficult section where there is little evidence.

25. However, what I do have is a view that B holds that he does not want to see his mother.  I do not propose to follow his view at this stage, having regard to the fact that I am not confident that he really knows what he is talking about and the psychologist who he spoke to, albeit in the presence of his father, said that any time with his mother ought to be very carefully managed.  Just who would manage that, I am not sure, but it seems to me that if B is going to be having an ongoing relationship with the psychologist, perhaps the psychologist should be given some of these reasons so that they can be a part of the assessment if it is to be a therapeutic assessment in the future.

26. All of the matters such as the question of the nature of the relationship, the parental responsibility, in this case do not easily lend to answers from the evidence.  It seems in the circumstances that all I can do is prepare this case for trial and give these two children an opportunity to do two things: first to find out what sort of a relationship they are going to have with each other in the future. All of the evidence points to the fact that they enjoy each other’s company, are interested in each other, and are active and spend time together when they have that opportunity.

27. The second important thing is that the children need to have the opportunity to find out what their respective parents have in store for them in the future.  They have the right to know who their parents are, and I propose to give both of them the opportunity to find that out. 

28. I do not propose to urgently order a family report in this case.  This is a case where these children need to spend a little bit of time together and that the family report can then be undertaken some time after the children have spent the time together and with each parent, so that if they are going to be influenced subsequent to spending time with each other, the family consultant will have an opportunity to see just what each child is telling his and her parent about the time that they have spent with the other parent over the very short Christmas period together.

29. Section 61DA requires a court when making a parenting order to apply the presumption that parents should have equal shared parental responsibility.  In this interim hearing, I do not need to make any determination because, particularly as here, the evidence is so lacking.  It is an issue, however, that I will need to address in the final trial, and I will urge the parties to give serious consideration as to how they are going to be involved in these children’s lives in terms of making decisions for their future.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 November 2010.

Associate: 

Date: 2 December 2010