Sadek and Sadek

[2020] FamCA 191

FAMILY COURT OF AUSTRALIA

SADEK & SADEK [2020] FamCA 191

FAMILY LAW – CHILDREN – Final Orders by Consent – Best interests of the children – Independent Children’s Lawyer not prepared to accede to orders in the absence of certification under rule 10.15A of the Family Law Rules 2004 (Cth) – evidence from mother of concerns about the father – no evidence which demonstrates that the father is an unacceptable risk – orders made.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 65DA
Family Law Rules 2004 (Cth) rr 1.12(2), 10.15A

Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (1998) 197 CLR 172
Fitzwater & Fitzwater [2019] FamCAFC 251
In the Marriage of A (1998) FLC 92-800
M v M (1988) 166 CLR 69
Morse & Duarte (2017) 58 Fam LR 131

APPLICANT: Ms Sadek

RESPONDENT: Mr Sadek

INDEPENDENT CHILDREN’S LAWYER: Blumberg Family Lawyers

FILE NUMBER: SYC 8550 of 2016

DATE DELIVERED: 20 January 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 20 January 2020

REPRESENTATION

SOLICITOR ADVOCATE FOR THE APPLICANT: Ms Arvantis

SOLICITOR FOR THE APPLICANT: The Norton Law Group

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Walter & Elliot Family Lawyers

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blumberg

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Blumberg Family Lawyers

Orders

1. The final hearing commencing on 20 April 2020, and the compliance check listed on 6 April 2020, be vacated.

2. Pursuant to r 1.12(2) of the Family Law Rules 2004 (Cth) (“the Rules”), the requirements of r 10.15A(3) be dispensed with.

3. By consent of the applicant and the respondent, but not the Independent Children’s Lawyer, orders be made in accordance with Exhibit A, as amended, and initialled by me, dated today and placed with the papers.

4. I DIRECT that the solicitor for the respondent file a clean certified typescript of the said document placed on the court file within 3 business days of the date of these orders in Microsoft Word format.

5. Pursuant to s 65DA(2) 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 included in these orders.

6. The appointment of the Independent Children’s Lawyer be discharged.

BY CONSENT, THE COURT ORDERS:

Parenting

1. That all prior Orders be discharged.

2. That the Mother and the Father shall have equal shared parental responsibility for the children, namely:

   (a)       X born … 2010 (“X”), currently aged 9 years.

   (b)       Y born … 2012 (“Y”), currently aged 7 years.

   (c)       Z born … 2013 (“Z”), currently aged 5 years. 

3. That from the date of these Orders until the conclusion of the 2019 school term, the children live with the Mother and spend time with the Father as follows:

   (a)       From the first Friday following the date of these Orders until the commencement of school on Monday and the same period each alternate weekend.

   (b)       Each Tuesday from the conclusion of school until 7pm.

   (c)       In respect of X, from the conclusion of school each Thursday until 5.30pm.

4. That during Term 1 and 2, 2020, the children spend time with the Father during the school term as agreed in writing between the Mother and the Father and if there is no such agreement then as follows:

   (a)       Week One: From the conclusion of school on the first Thursday following the date of these Orders until the commencement of school on Monday.

   (b)       In Week Two: from the conclusion of school on Thursday until the commencement of school on Friday.

5. That from Term 3 of 2020, the children shall live with the Mother and Father during school term on an equal shared care arrangement with changeover occurring at the conclusion of school each Friday.  

6. That from the date of these Orders, the children shall spend half of each school holiday period with each of the Mother and the Father as agreed between the parties in writing, and failing agreement:

   (a)       In respect of the April, June/July and September/October school holidays in even numbered years commencing in 2020, the children shall live with Mother for the first half of the school holiday period commencing at 3.00pm on the last day of term, and with the Father for the second half of the school holiday period, with changeover to occur at 5.00pm on the middle day of the school holidays, and if there are two middle days then at 5.00pm on the first of those two middle days, and the children's time with the Father to conclude at the commencement of school on the first day of the new school year.

   (b)       In respect of the April, June/July and September/October school holidays odd numbered years commencing in 2021, the children shall live with Father for the first half of the school holiday period commencing at 3.00pm on the last day of term, and with the Mother for the second half of the school holiday period, with changeover to occur at 5.00pm on the middle day of the school holidays, and if there are two middle days then at 5.00pm on the first of those two middle days, and the children's time with the Mother to conclude at the commencement of school on the first day of the new school year.

   (c)       In respect of the 2019/2020 Christmas school holiday period the children shall spend time with the children “week about” with changeover happening at 5pm after seven (7) nights with the Father to have the first week commencing from the last day of school term. 

   (d)       In respect of the Christmas school holidays in 2020/2021 and each alternate year after, the children shall live with Mother for the first half of the school holiday period commencing and with the Father for the second half of the school holiday period, with changeover to occur at 5.00pm on the middle day of the school holidays, and if there are two middle days then at 5.00pm on the first of those two middle days, and the children's time with the Father to conclude at the commencement of school on the first day of the new school year.

   (e)       In respect of the Christmas school holidays in 2021/2022 and each alternate year thereafter, the children shall live with Father for the first half of the school holiday period and with the Mother for the second half of the school holiday period, with changeover to occur at 5.00pm on the middle day of the school holidays, and if there are two middle days then at 5.00pm on the first of those two middle days, and the children's time with the Mother to conclude at the commencement of school on the first day of the new school year.

7. Notwithstanding any other Order the children shall be with the Mother (and the Father’s time suspended) as follows:

   (a)       From 12pm Christmas Eve until 12pm on Christmas Day in 2019 and each alternate year thereafter.

   (b)       From 12pm on Christmas Day until 12pm on Boxing Day in 2020 and each alternate year thereafter.

   (c)       From 12pm on Good Friday until 9am on Easter Sunday in 2020 and each alternate year thereafter.

   (d)       From 9am on Easter Sunday until 5pm on Easter Monday in 2021 and each alternate year thereafter.

   (e)       From 5pm the day before Mother's Day until 5pm on Mother’s Day.

8. Notwithstanding any other Order the children shall be with the Father (and the Mother’s time suspended) as follows:

   (a)       From 12pm on Christmas Day until 12pm on Boxing Day in 2019 and each alternate year thereafter.

   (b)       From 12pm Christmas Eve until 12pm on Christmas Day in 2020 and each alternate year thereafter.

   (c)       From 9am on Easter Sunday until 5pm on Easter Monday in 2020 and each alternate year thereafter.

   (d)       From 12pm on Good Friday until 9am on Easter Sunday in 2021 and each alternate year thereafter.

   (e)       From 5pm the day before Father’s Day until 5pm on Father’s Day.

9. That on each of the days that either X or Y or Z receive a Holy sacrament (Reconciliation, Holy Communion and Confirmation) the children spend time with the parent that they would not otherwise be spending time with for 3 hours as agreed in writing and failing agreement, time to commence a the conclusion of the service.

10. That unless otherwise agreed in writing, in the event that the children are not spending time with the Mother or Father on the respective parent's birthday, the children shall spend time with that parent as follows:

    (a)       With the Father on the Father’s birthday from after school to the commencement of school the following day if it is a school day, or from 3.00pm until 9.00am the following day if it is a non-school day.

    (b)       With the Mother on the Mother’s birthday from after school to the commencement of school the following day if it is a school day, or from 3.00pm until 9.00am the following day if it is a non-school day. 

11. That the parent who does not otherwise have the care of the children on X’s birthday spend time with the children on X’s birthday from after school to 6.00pm on a school day or from 11.00am to 3.00pm if it is a non-school day. 

12. That the parent who does not otherwise have the care of the children on Y's birthday spend time with the children on Y's birthday from after school to 6.00pm on a school day or from 11.00am to 3.00pm if it is a non-school day. 

13. That the parent who does not otherwise have the care of the children on Z's birthday spend time with the children on Z's birthday from after pre-school/school to 6.00pm on a school day or from 11.00am to 3.00pm if it is a non-school day. 

14. That unless otherwise agreed in writing between the Father and the Mother, changeover shall occur at pre-school/school, if applicable, and otherwise the person whose time with the children is to commence (or their nominee) shall collect the children from the other parent’s residence.

15. That each party shall:

    (a)       Inform the other party as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by any of the children, that is, if they have a fever or illness and need to see a doctor, or they require hospitalisation.

    (b)       Keep the other party informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;

    (c)       Keep the other party informed of the names and addresses of any treating medical or other allied health practitioner who treats any of the children and authorise such practitioners to provide the other party with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and

    (d)       This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.

16. That each party agrees to communicate with each other in a polite and respectful manner, noting that conflict amongst parents will have a negative impact on the children.

17. That the parties agree to communicate by telephone, text or email, and to ensure that the children are not used as a messenger.

18. That each party be at liberty to communicate with the children by telephone and/or skype or other means at all reasonable times and each party will facilitate same and in the event that either party elects to supply a mobile phone to X (or Z or Y at a later time) the other parent shall not interfere with that child’s reasonable use of the phone in communicating with the other parent.

19. That each of the parties will be at liberty to attend and engage in any sporting, after school, recreation, educational or other activity in which the children are involved and shall use their best endeavours to keep the other parent informed of all such activities and provide reasonable notice thereof to facilitate their attendance.

20. That both parties are restrained from denigrating the other party, the other party’s family and friends, to, or in the presence or hearing of the children and shall use their best endeavours to ensure no other person does so.

21. That pursuant to s 62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

22. That pursuant to s 65DA(2) of the Family Law Act, 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 Fact Sheet, attached hereto and these particulars are included in these orders.

Property

1. That subject to Orders 1 to 22 being made by this Honourable Court, Orders 24 to 30 be made.

2. That simultaneously and within 28 days of the date of these orders:

   (a)       The Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife all of his right, title and interest in the real property situate at and known as D Street, Suburb K, in the State of New South Wales (Folio identifier …) (“the former matrimonial home”)

   (b)       The parties do all acts and things and sign all documents and the Wife pay all sums of money to discharge and/or refinance the registered mortgage secured over the former matrimonial home.

3. That subject to these Orders, the Husband be declared to have the sole right, title and interest in:

   (a)       All superannuation entitlements held by him;

   (b)       All monies in financial institutions in his name;

   (c)       His Motor vehicle 1 registration …; and

   (d)       All other real and personal property now in his possession, custody or control.

4. That subject to these Orders, the Wife be declared to have the sole right, title and interest in:

   (a)       All superannuation entitlements held by her;

   (b)       All monies in financial institutions in her name;

   (c)       All motor vehicles registered in her name; and

   (d)       All other real and personal property now in her possession, custody or control.

5. The Wife indemnify and keep indemnified the Husband in relation to all liabilities and debts in her name, including but not limited to any credit card liabilities and income tax liabilities.

6. The Husband indemnify and keep indemnified the Wife in relation to all liabilities and debts in his name, including but not limited to any credit card liabilities and income tax liabilities.

7. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

8. The parties bear their own costs.

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 Sadek & Sadek 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 SYDNEY

FILE NUMBER: SYC 8550 of 2016

Ms Sadek

Applicant

And

Mr Sadek

Respondent

REASONS FOR JUDGMENT

1. These are oral reasons for judgment concerning a proposal by the parents of the children the subject of the proceedings to enter into final parenting orders in circumstances where the Independent Children's Lawyer does not proffer consent to those orders, but leaves the question as to whether they should be made in the hands of the Court.

2. For the purpose of these oral reasons, I will not set out at any length the history of the proceedings.  I simply note that they have been on foot now for nearly four years and they relate to three children, X, born in 2010, Y, born in 2012, and Z, born in 2013.  The children, therefore, are currently nine, seven and six years old respectively.

3. The proceedings concern both property and parenting issues.  The parties have entered into proposed final consent orders in respect of all issues and ask the Court to make those orders by consent.  As already noted, the Independent Children's Lawyer does not consent to the orders being made.

4. Stated briefly, there is no dispute that, up to February 2018, the children spent unsupervised time in the care of the father for five nights a fortnight.  That regime changed to supervised time in circumstances where the mother held concerns about the sexual attitudes of the father, as a result of which application was made to the Court, and a hearing was conducted before Austin J, as a result of which certain orders were made, including orders for supervised time with the father on an interim basis.

5. Since February 2018, the children have spent time with the father, but his time has been supervised by the paternal grandparents in circumstances, as I understand it, where the father lives with his parents.  I note here that there is no evidence to suggest that anything has been observed during supervised time which would lead to concerns about the children being at risk in the father’s care.

6. The nature of the concerns leading to allegations by the mother arise out of certain material which came to light, at least partly, as a result of an investigation undertaken by Mr F, who is identified as expert professional. He allegedly found what has been described as child exploitative material, accessed or retained by the father on a computer.  He released a report which was given to the parties on 19 June 2019.

7. The matter came before me on 21 June 2019, on which occasion the mother submitted she would not be comfortable with the children spending time with the father unless supervision was changed from supervision by the paternal grandparents to professional supervision on the basis that that was something that had been adverted to by Dr E in an earlier expert report prepared for these proceedings.  At that time, the Independent Children's Lawyer expressed the view that there would be little difference between supervision by the grandparents and professional supervision in the circumstances of this case.  Also, one of the catalysts for the matter coming before me was a unilateral withholding of the mother of the children from time with the father based upon her expressed concerns about the nature of material ascertained by Mr F.

8. Since June 2019, the matter has been listed for a nine-day final hearing commencing on 20 April 2020 and it was proposed for Dr E to prepare a further updating expert report which would take account of the material discovered by Mr F.

9. As already noted, since then, the parties entered into proposed final consent orders for both parenting and property matters.  The agreement of the parties is that the orders are conditional upon all of them being made simultaneously.  That is, there is no agreement that property orders could be made separately to parenting orders.

10. The matter was listed before me on 20 January 2020 by reason of the fact that my chambers were notified that the Independent Children's Lawyer would not subscribe consent to the proposed final consent orders. During the hearing before me on 20 January 2020, the Independent Children's Lawyer quite properly adverted to Rule 10.15A of the Family Law Rules 2004 (Cth)(“the Rules”) which, in sub-rule (3), which makes clear that if an application is made in a current case by lodging or tendering a draft consent order, each party or their lawyer must provide certain certifications as specified in sub-rule (3), including, in sub-paragraph (c), that, if allegations of abuse or family violence have been made, they must explain in an annexure how the order attempts to deal with the allegations.

1. The proposed form of final consent orders submitted to my chambers did not comply with rule 10.15A(3) of the Rules. However, submissions were made to me on 20 January 2020 that the parties did not wish to proceed with a nine day final hearing for financial reasons and that, in the circumstances, the mother was satisfied, despite any residual concerns, that the proposed final consent orders in relation to parenting were in the children’s best interests. I point out, without setting them out in detail, that the proposed final consent orders make provision for the children to commence spending time with the father during term time from week 1, Thursday to the following Monday and, in week 2, from the conclusion of school on Thursday until the commencement of school on Friday, being a total of five nights per fortnight, together with half of each school holidays.

2. The orders do not make provision for any ongoing supervision.  In determining the best course for the possible final resolution of these proceedings, I bear in mind that the paramount consideration is the best interests of the children.  I also take account of case management concerns, including the fact that, if the Court is satisfied the final consent orders should be made, that would release nine days of judicial time into which other matters may be allocated final hearing dates.  However, I make clear that any case management considerations must yield to the best interests of the children, which continue to be the paramount consideration.

3. During the course of arguments, I formed the view that there was concern that rule 10.15A(3) of the Rules had not been complied with. The consequence of that noncompliance was that there was no certification or annexure which permitted me to form a view about how the proposed final consent orders attempted to deal with allegations that had been made by the mother in the course of the proceedings. For the purpose of this judgment, I do not consider it necessary to specify those allegations in great detail. In substance, however, they are allegations that the sexual attitudes of the father have led him to engage in what might be described as robust sexual activities, including watching pornographic digital movies, some of which involved bestiality. The concern expressed by the mother was that those attitudes may have led the father, and would continue to lead the father, to access child exploitative material of such a nature from which it should be inferred he would pose a risk to the children, if they spent time with him unsupervised.

4. There was no dispute that there have been submitted to the New South Wales Police allegations concerning digital material retained by the father with the question of whether it posed child exploitative material such as to violate the criminal laws of this state.  There was no dispute that the police have done nothing in response to the material they have received.  It is also not in dispute that Mr F was not an expert in relation to child exploitative material in the sense of being able to pass any comment upon what it might say about the person who accessed it.  He is simply an IT expert.

5. There was also provided to me a report of Dr C dated 31 October 2018 in which he expressed the view that the father posed no risk to the children.  However, it is quite obvious from that report that Dr C has formed his view solely on the basis of what has been reported to him by the father. 

6. By reason of my concerns about the absence of compliance as r 10.15A of the Rules, I called the mother into the witness box to answer questions about her concerns relating to the father and the children in his care. In her evidence, it became clear that she retains some residual concerns about the children in the father’s care but she conceded that she has no objective evidence, apart from what is already available, to support her concerns and that she could not prove that the father, whatever his attitudes to sexual activity, had a predisposition to paraphilia or child exploitative material such as to pose a risk to the children when in his care. I am certainly sympathetic to her residual concerns, but she quite fairly concedes, therefore, in my view, that there is little evidence of an objective nature which currently forms a basis for those concerns.

7. Ms Arvantis, who appeared for the mother, made submissions that the mother was satisfied in the circumstances that the orders proposed were in the best interests of the children.  The mother’s own oral evidence in the witness box satisfy me that, despite her concerns, she is not in a position to satisfy the evidentiary principles applicable to unacceptable risk. 

8. A Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse: M v M (1988) 166 CLR 69. The “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm (In the Marriage of A (1998) FLC 92-800 at [3.24].

9. Different evidentiary considerations may apply in relation to determining an allegation of unacceptable risk as opposed to determining whether a serious abusive, violent or criminal act has occurred (Briginshaw v Briginshaw (1938) 60 CLR 336 or s 140 of the Evidence Act 1995 (Cth). Thus findings about the occurrence of violence or abuse may need proof to a higher standard than findings about the existence of an unacceptable risk, although the two may be interrelated: M v M (supra) at [76]; Amador & Amador (2009) 43 Fam LR 268 at [94] - [96]. So the evidentiary standards for a finding that abuse took place and a finding about future risk are different in the sense that where a positive finding of abuse cannot be made, this does not preclude a finding of unacceptable risk of future harm: Morse & Duarte (2017) 58 Fam LR 131 at [540]. The assessment of risk is a predictive exercise, and though influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm, but this possibility need not be proved as a probability: Fitzwater & Fitzwater [2019] FamCAFC 251 at [136] to [142] (per Austin J).

10. The High Court makes clear that a Court or a judge, in forming a view about a risk and whether or not it is unacceptable, can use not only evidence but intuition and inferences that can be drawn from such evidence.  At the moment, I am not satisfied there is any evidence which would meet the liberal approach to the evidence which has been adumbrated in decisions such as CDJ v VAJ (1998) 197 CLR 172 and decisions of the Full Court which have followed it.

11. Consequently, I am not satisfied that it is in the children’s best interests to refuse to make orders to which both parents have subscribed in circumstances where there is not sufficient evidence to suggest the children, even on an interim basis, may be at unacceptable risk in the care of their father, if they are placed in that care in accordance with the proposed final consent orders.  I wish to make clear that, although both parties refer to financial constraints upon them in conducting a nine-day trial, I have not taken that into account in forming my view for the purpose of this judgment.  Where the best interests of the children are paramount, I do not consider that to be a factor which is of any importance.

12. Mr Blumberg, the Independent Children's Lawyer, heard the evidence of the mother and took time to consider what his attitude was to the proposed final consent orders in light of that evidence.  He quite properly submitted to me that, despite the matters suggesting there was no risk in the father’s care, there was as yet no conclusive report from Dr E and, therefore, there was an absence of expert evidence which could assist the Court in forming a final view.  He also drew attention to the fact, as I have already noted, that Dr C’s report was based upon the father’s self-reporting and it is, of course, now almost 18 months old.  Nonetheless, Mr Blumberg took the position that, whilst he was not prepared to give his consent to these orders, he left it in the hands of the Court as to whether such orders should be made.

13. The fact that the mother has signed the proposed final consent orders is something I take into account. I draw the inference from that fact that her attitude to the allegations she has made in the past has shifted and is now consistent with a view that she could not prove, on the basis of objective evidence, any of the allegations she has made in the past and, therefore quite fairly in my view, has formed the view herself that, although she holds residual concerns, they should not properly stand in the way of entering into the proposed final consent orders because they represent an outcome which, she accepts, is in the best interests of the children.

14. Accordingly, on the basis of the material before me and submissions made by the parties on 20 January 2020, I am satisfied that, on balance, it is in the best interests of the children for the proposed final consent orders to be made.  Bearing in mind not only all the matters I have already adverted to in this judgment, but also the fact that, by making final consent orders today, the children, who are still quite young, will be released from the burden of being the subject of ongoing litigation which, experience tells us, can have serious deleterious effects upon a child’s psychology and development.

15. Whilst I do not ignore the allegations that have been made in the past, I am satisfied overall that it is in the best interests of the children for final consent orders to be made today on the basis entered into by the parties. 

16. I should add that I consider the approach taken by the Independent Children's Lawyer to have been entirely proper. Mr Blumberg is to be commended for raising proper concerns with the Court rather than simply entering into a proposed set of consent orders which, in his view, may not represent an outcome in the best interests of the children.  Accordingly, I make the orders by consent.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 20 January 2020.

Associate: 

Date:  27 March 2020