RAVIN & CZERKASKI

[2018] FamCA 714

FAMILY COURT OF AUSTRALIA

RAVIN & CZERKASKI [2018] FamCA 714

FAMILY LAW – CHILDREN – interim orders – consent orders – where the trial commenced – where the mother previously asserted the father and his wife had engaged in inappropriate behaviour with the children – where the mother’s position now is that she accepts that her interpretation of alleged disclosures by the children and her interpretation of events and behaviours may have been incorrect – order that the mother engage in treatment with a psychologist or psychiatrist – order that the parties and children engage with therapeutic intervention – order that the father spend unsupervised time with the children – where the family consultant gave evidence in relation to the interim orders – where the family consultant confirmed in her evidence that the proposed orders represent what she described as a positive step – family consultant has confirmed that the approach adopted by the parties in these interim orders is appropriate and in their best interests – satisfied that pursuant to s 60CC that the orders in the best interests of the children.

Family Law Act 1975 (Cth)s 60CC

APPLICANT: Ms Ravin

RESPONDENT: Mr Czerkaski

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 4931 of 2014

DATE DELIVERED: 1 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 30 April 2018 & 1 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howe

SOLICITOR FOR THE APPLICANT:	MMH Lawyers
COUNSEL FOR THE RESPONDENT:	Ms Theoharopoulou

SOLICITOR FOR THE RESPONDENT: MNG Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER

1. That all previous parenting orders be discharged.

2. That the mother shall attend upon a psychiatrist or psychologist nominated by the independent children’s lawyer for therapeutic treatment in relation to the concerns outlined in paragraphs 113-117 of the Family Report of Ms B dated 24/04/2018

3. That for the purpose of the therapeutic treatment set out in paragraph 2 of these orders:

   (a)The ICL shall forward to the psychiatrist or psychologist the report of Ms B dated 24/04/2018, the reports of Dr C dated 11/04/2018 and a copy of the transcript of Ms B’s evidence this day and of the mother’s evidence on 30/04/18 and this day.

   (b)The mother shall comply with all reasonable directions of the Psychiatrist or Psychologist.

   (c)       Such therapeutic treatment shall be reportable.

   (d)The ICL is at liberty to liaise with the psychiatrist or psychologist at the discretion of the psychiatrist or psychologist.

   (e)       The cost of such treatment be borne by the Mother.

4. That the children X born …/2009 and Y born …/2012 live with the mother.

5. That the children spend time and communicate with the father as follows:

   (a)Each alternate weekend from the conclusion of school or 3.15PM on Thursday until the commencement of school or 9.00AM on Monday commencing on 10/05/2018 provided that for that weekend only such time conclude at 6.00PM on Saturday (due to the event of Mother’s Day on Sunday 14/05/2018).

   (b)On Father’s Day from 5.00PM on the Saturday prior, to commencement of school on Monday in the event the usual weekend time does not fall on.

   (c)       Such other time as may be agreed in writing.

6. That the mother, father, children and Ms D Czerkaski attend upon a Counsellor or Psychologist nominate by the ICL for the purpose of reportable therapeutic family counselling as recommended in the Family Report and the Counsellor or Psychologist shall be provided with copies of the reports of Dr C dated 11/04/2018 the Family Report dated 24/04/2018 and a copy of the transcript of the mothers evidence on 30/04/2018 and 01/05/2018, and of Ms B 01/05/2018 by the ICL, and the parents shall be responsible for the cost of their individual sessions and jointly responsible for the cost of sessions involving the children.

7. That for the purposes of changeovers:

   (a)The father shall collect and return the children to and from their school or

   (b)In the event that time spent does not occur on a school day, the father shall collect and return the children from and to the mother’s home.

   (c)The fathers partner Ms D Czerkaski shall be at liberty to attend changeover in the event the father is unable.

8. That the mother and the father be and hereby restrained from

   (a)Discussing these proceedings with the children or either of them or allowing them to access any documents filed in the proceedings.

   (b)Questioning the children in relation to activities undertaken by them whilst in the other parents home, or in relation to activities undertaken within the other parents household by that parent or his or her partner.

   (c)Denigrating, belittling or otherwise intimidating the other parent in the presence or hearing of the children or anyone in their respective households.

   (d)Taking the children to any counsellor, counselling service, police or DHHS without first obtaining the leave of this court or the written consent of the other parent and the ICL.

   (e)       Or permitting or knowingly allowing any other person to do so.

9. That the children shall not attend any other counsellor or psychologist other than as provided in these Orders, unless recommended by the therapeutic family counsellor provided for in paragraph 6 herein.

10. That a transcript of the evidence in these proceedings including the evidence of Ms B on 11/05/2018 shall be provided to the solicitors for the parties and the ICL.

11. That there be liberty to apply upon filing of an Application in a Case supported by an affidavit, and any such application must be brought to the attention of Justice Johns Chambers and if practicable listed before Her Honour.

12. That the father be at liberty to attend the children’s school from time to time, including changeover and such attendance shall not be in breach of the intervention order dated 05/12/2017.

13. That the ICL and Ms B shall meet with the children as soon as practicable to explain the terms of these Orders.

14. That the Mother and the Father shall use their best endeavours to ensure the children sleep in their own individual beds and further that during time spend at the fathers home the children sleep in the same bedroom.

15. That the children continue to attend upon Ms E Psychologist as required or as requested by the children’s school provided that such counselling is limited to issues relating to the child X’s ASD or the children’s anxiety, bullying and behavioural issues and not include any counselling relating to allegations of sexual or physical abuse by the parents or their partners.

16. That the ICL shall provide copies of these Orders to the children’s schools and treating medical and allied services professional.

17. That the parties shall communicate in relation to issues pertaining to parenting arrangements and the children’s welfare only by SMS text message.

18. The matter be otherwise adjourned to 9.30AM on 30/11/2018.

19. Usual Orders pursuant to s65DF(2) and s62B. Pursuant to s.65DA(2), 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 the attached Fact Sheet and these particulars are included in these orders.

20. Certify for Counsel.

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 Ravin & Czerkaski 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 MELBOURNE

FILE NUMBER: MLC 4931 of 2014

Ms Ravin

Applicant

And

Mr Czerkaski

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter was listed for final hearing before me commencing yesterday, 30 April 2018. 

2. The proceedings relate to the parenting arrangements for the parties’ two children, X, who is aged nine years, and Y, who is aged six years.  Currently, the children live with the mother and spend supervised time with the father pursuant to orders that were made by Judge Curtain in September of 2017. 

3. Prior to those orders having been made, the parties had entered into final orders by consent in December of 2014.  Those orders provided that the children live with the mother and that they spend time with the father for both alternate weekends and midweek time, the effect of those orders being that the children spend four nights per fortnight with their father.

4. The background to the current dispute is as follows. 

5. The mother is aged 35 years.  She is employed on a part-time basis. 

6. The father is aged 36 years.  He is employed as a tradesman.  He has re-partnered and lives with his current wife, Ms D Czerkaski. 

7. The parties commenced their cohabitation in March of 2009 and separated in May of 2013.  As I have noted, there are the two children of the relationship. 

8. The mother brought the current application before the court seeking orders the effect of which was that the children spend no time with the father.  That application was made as a result of alleged disclosures made by the children to her and others with respect to the conduct of both the father and his current partner. 

9. The mother in her trial affidavit, sets out allegations of family violence and inappropriate conduct by the father alleged to have occurred during their relationship and in the period preceding the parties’ separation.  She also sets out alleged disclosures of inappropriate conduct both in terms of physical violence and sexually inappropriate behaviour towards the children, which is said to have occurred in the period following the making of the final orders.  She sets out her engagement with the Department of Health and Human Services and the history of reports made by her and the children’s counsellor to the department with respect to alleged disclosures.

10. The father and his partner deny all allegations of inappropriate behaviour. 

11. The Department has conducted a series of investigations and the history of their engagement with the family is set out in the Magellan report prepared and dated 30 November 2017. 

12. The parties attended upon Ms B for the preparation of a family report.  That report is dated 24 April 2018.  It was only released to the parties last Friday, 27 April 2018.  That report is detailed and comprehensive, setting out the concerns raised by the mother and the position of the father. 

13. The report also contains observations of both children and information obtained by the family consultant from the contact service who has been providing supervision for the father’s time since the orders were made by Judge Curtain last year.  It also contains information obtained from the Victorian police files, from the children’s school counsellor and records obtained from the children’s school, the mother’s counsellor and the children’s treating medical practitioners.

14. The family consultant raised significant concerns in her report with respect to the mother’s presentation.  She makes a series of recommendations at the conclusion of that report as to what should occur in the event that the Court was to make a finding that there is no risk to the children in the father’s household.  The report writer also contemplates what should occur in the event that there was a finding of risk within the father’s household. 

15. There is also a report from Dr C, psychiatrist, who has conducted an assessment of both the mother and the father.  Those reports are annexed to Dr C’s affidavit, filed 16 April 2018.  Again, in the concluding paragraphs of those reports, the psychiatrist contemplates what the impact would be upon his assessment of both parties, depending upon whether there were findings of unacceptable risk or not.

16. The trial commenced before me yesterday.  The mother’s counsel opened her case.  The mother commenced evidence.  She was cross-examined by the father’s counsel throughout yesterday and up until the mid-morning break today.  During the course of the mid-morning break today, discussions occurred between counsel representing all parties and there has been ongoing discussion throughout the day.  After the luncheon period, it was evident that there was an agreement in principle between the parties as to what should be interim arrangements. 

17. Due to the concerns I had with the proposed interim arrangements, which included a proposal that the father’s unsupervised time resume, the family consultant was called and gave evidence as to her views of the proposals that are now presented to me in the form of a minute of proposed consent order.  The family consultant confirmed in her evidence that the proposed orders represent what she described as a positive step, particularly on behalf of the mother, who has, through her counsel, confirmed her agreement that it is appropriate to engage in either psychiatric or psychological therapy to assist her with issues that have emerged and which are described clearly in the family report.

18. Counsel for the mother indicated that the mother’s position now is that she accepts that her interpretation of alleged disclosures by the children and her interpretation of events and behaviours may have been incorrect.  It is on the basis of that concession that she has indicated a willingness to participate in the therapeutic regime that is contemplated in the proposed minute of order.

19. Concessions have been made by both parties in presenting the orders to the Court.  At the commencement of her evidence, the mother’s position was that she would always believe that the father had behaved inappropriately towards the children.  In presenting the orders that she has signed, there is a clear concession by her and a recognition that what she had perceived to be risk may, in fact, not be the case.

20. The father, too, has made concessions.  The recommendations of the family consultant are that in the event that there is no finding of risk that there should be a change of the children’s living arrangements.  He does not press his application for a change of residence at this time.  In giving his consent to these orders, he recognises the potential risk to the children were there to be such a radical shift in their living arrangements.

21. Both parties have indicated a willingness to end the litigation, a willingness to work together in a therapeutic module so as to end the conflict, to improve the parenting relationship to secure a better outcome for their children.  Both parents are to be commended for that approach.

22. The family consultant has confirmed that the approach adopted by the parties in these interim orders is appropriate and in their best interests.  The proposed orders are an opportunity; an opportunity for the children to live a life without conflict, an opportunity for the mother to address issues which are identified by Dr C and the family consultant.  She will have an opportunity to reflect on her evidence given and consider her approach to parenting these children, her approach and attitude to the relationship the children are to have with their father.

23. Having considered the submissions made by counsel representing each of the parties, and having regard to the evidence of both the mother and, importantly, the family consultant, and taking into account the relevant matters I am required to pursuant to s 60CC of the Family Law Act 1975 (Cth), I am satisfied that the proposed interim orders are appropriate and in the children’s best interests. Therefore, I will make orders in the terms of the minute signed by the parties. That minute will be marked with the letter A and will remain on the court file.

24. I direct that the Applicant’s solicitors engross and file that minute at Court within seven days.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 May 2018.

Associate: 

Date:  1 May 2018