Sadotra & Darzi

[2020] FamCA 93

FAMILY COURT OF AUSTRALIA

SADOTRA & DARZI AND ORS [2020] FamCA 93

FAMILY LAW – CHILDREN

Family Law Act 1975 (Cth) ss 60CC, 117

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Sadotra

FIRST RESPONDENT: Ms Darzi

SECOND RESPONDENT: Ms C Sadotra

THIRD RESPONDENT: Mr C Sadotra

INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

FILE NUMBER: PAC 2318 of 2016

DATE DELIVERED: 20 February 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Gill J

HEARING DATE: 17 – 20 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Breeze

SOLICITOR FOR THE APPLICANT: Prime Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Pickering

SOLICITOR FOR THE FIRST RESPONDENT: M J Woods & Co

COUNSEL FOR THE SECOND RESPONDENT: Ms Breeze

SOLICITOR FOR THE SECOND RESPONDENT: Prime Lawyers

COUNSEL FOR THE THIRD RESPONDENT: Ms Breeze

SOLICITOR FOR THE THIRD RESPONDENT: Prime Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blank

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

By Consent Orders As To Parenting

1. The mother have sole parental responsibility for the child, X born … 2013 (“the child”).

2. That the child live with the mother.

3. That the child spend time with the father as follows:

   (a)Every alternate weekend being Saturday from 10.30 am to 5.30 pm and Sunday 10.30 am to 5.30 pm, pick up and drop off to be facilitated by the mother and the father in the company of the paternal grandmother, or the parents’ nominees, at McDonald’s, Suburb B.

   (b)Every alternate Friday, being the Friday immediately preceding the weekend that the father does not spend time with the child, from 4.00 pm to 7.30 pm, pick up and drop off to be facilitated by the mother and father in the company of the paternal grandmother, or the parents’ nominees, at McDonald’s, Suburb B.

4. Notwithstanding sub-paragraphs (a) and (b) of Order 3, that the child spend time with the father as agreed between the parties.

5. The father’s time as otherwise provided shall be suspended on Mother’s Day.

6. The mother’s time as otherwise provided shall be suspended on Father’s Day, and the child shall spend time with the father from 10.30 am to 5.30 pm.

7. For the purposes of Order 6, the changeover arrangements are as per Order 3.

8. The father’s time in Order 3 herein be conditional upon his continuing residence in the home of the paternal grandparents.

9. That the paternal grandfather and the paternal grandmother spend time with the child as agreed between the father and the paternal grandfather and the paternal grandmother from time to time, NOTING THAT, the father’s time with the child is subject to the condition in Order 3 herein.

10. The father spend time with the child on the child’s birthday each year, from 4.00 pm until 7.30 pm if it is a weekday; or if it falls on a weekend that the child would not already be with the father, from 11.00 am to 5.00 pm.

11. That each party is at liberty to communicate with the child on weekdays and on weekends at all reasonable times, to be initiated by the party calling the residential parent on his or her mobile telephone service or by Skype or Facetime, provided such a facility is available, and the residential parent shall make all reasonable efforts to facilitate that communication.

12. That at all times each party shall keep the other party informed in writing of their current residential address and telephone number, including periods when they are on holiday with the child.

13. That all parties are at liberty to attend events for the child including graduation ceremonies, sports and swimming carnivals, eisteddfods, concerts, parent teacher interviews, weekend sport and other events to which parents and/or grandparents are normally invited to attend.

14. These orders are authority for both the mother and the father to authorise the child’s school to provide to the other parent and the paternal grandfather and paternal grandmother on a regular basis copies of all school reports, school newsletters and other information regarding the child’s school activities.

15. That each party advise the others if the child requires medical treatment from a doctor or requires to be hospitalised whilst in the care of that party, and that each party do all acts and things and sign all documents necessary to authorise the release of information and reports to the other parties from any medical practitioner or hospital as requested by that party in respect of the treatment provided to the child at any time.

16. That neither party shall relocate the child’s residence to a location of more than 30 kilometres from the other party’s residence without the prior consent in writing of the other parties.

17. That the mother shall be at liberty to travel internationally with the child during the periods of time the child is to spend with her pursuant to these Orders provided that:

    (a)Such travel is to a country which is a signatory to the Hague Convention and said signatory has been ratified by the Commonwealth of Australia;

    (b)She provide to the father 28 days prior to the intended travel:

    (i)All details of the itinerary including dates of travel, mode of travel, proposed destination and contact details for the child whilst abroad;

    (ii)Copies of the travel documents for the child for the intended travel.

    (c)The father is at liberty to travel internationally with the child with the mother’s agreement in writing and conditional upon:

    (i)Such travel is to a country which is a signatory to the Hague Convention and said signatory has been ratified by the Commonwealth of Australia;

    (ii)That he provide to the mother 28 days prior to the intended travel:

    a)All details of the itinerary including dates of travel, mode of travel, proposed destination and contact details for the child whilst abroad;

    b)Copies of the travel documents for the child for the intended travel.

18. The mother shall retain the child’s passport for safekeeping and must provide it to the father within 36 hours of the father’s compliance with Order 17(c) above.

19. That each party be restrained from making critical or derogatory remarks in relation to the other parties in the presence or hearing of the child and that each of the parties do all things necessary to ensure that no third party makes critical or derogatory comments about any of the other parties in the presence or hearing of the child and shall immediately remove the child from the vicinity where any person is making such remarks.

20. The father continue to attend upon his mental health practitioner/s until directed otherwise, and take any medication as directed.

21. The Father shall forthwith seek a recommendation from his treating psychologist regarding his participation in anger management therapy, including dialectic behaviour therapy and then subsequently comply with such recommendation.

22. The mother, father and paternal grandparents refrain from discussing these proceedings in the presence of the child.

23. The mother, father and paternal grandparents refrain from consuming alcohol in the presence of the child.

24. The mother, father and paternal grandparents refrain from physically punishing the child.

25. The mother refrain from informing the child, directly or through a third party, of the father’s and/or the paternal grandfather’s criminal histories.

26. The mother shall inform the father within a reasonable timeframe in the event the child is ill and cannot spend time with the father pursuant to Order 3 above.

27. The father shall keep the mother notified as to his compliance with his obligations pursuant to Order 20 herein at six monthly intervals by way of provision of a letter from his treating practitioner confirming his compliance with those obligations.

By Consent Orders As To Property

1. The Applicant shall retain all interest in and entitlement to:

   28.1    All personal property now in his possession or control;

   28.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name;

   28.3    All interests in life insurance policies standing in his sole name;

   28.4    All right, title and interest in any companies standing in his name; and

   28.5All interests in his superannuation funds and any other superannuation entitlements which he may be entitled to.

2. The Respondent shall retain all interest in and entitlement to:

   29.1    All personal property now in her possession or control;

   29.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name;

   29.3    All interests in life insurance policies standing in her sole name;

   29.4    All right, title and interest in any companies standing in her name; and

   29.5All interests in her superannuation funds and any other superannuation entitlements which she may be entitled to.

NOTATION

A.The parties agree that as far as it is practicable to do so these Orders are made having regards to provision of Section 81 of the Family Law Act, 1975 with a view to determining for all time the financial relationship between the parties and avoiding further proceedings between them.

Orders As To The Independent Children’s Lawyer’s Costs

1. The father is liable to pay costs of the Independent Children’s Lawyer fixed in the sum of $5,381.69.

2. Ms C and Mr C jointly and severally liable for the Independent Children’s Lawyer’s costs fixed in the sum of $5,381.69.

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 Sadotra & Darzi 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 PARRAMATTA

FILE NUMBER: PAC2318/2016

Mr Sadotra

Applicant

And

Ms Darzi and Ms C Sadotra and Mr C Sadotra

Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. The parties to this matter are Mr Sadotra, the Applicant Father, and Ms Darzi, the Respondent Mother. The second Respondent, the Paternal Grandmother, is Ms C Sadotra and the third Respondent, the Paternal Grandfather, Mr C Sadotra. The parties married … 2012 and separated … 2016. There is one child of the relationship, X, born … 2013 (“the child”). 

2. These proceedings were initially in the Family Court of Australia by the Applicant Father on 23 May 2016. The Respondent Mother filed her Response on 5 July 2016. The proceedings were transferred to the Federal Circuit Court of Australia Parramatta Registry on 12 July 2016.

3. This matter was transferred to the Family Court of Australia by Order of Judge Newbrun made in the Federal Circuit Court of Australia on 7 March 2019. At the time of transfer the proceedings were only in relation to parenting.  Property proceedings were also commenced.

4. The scope of the dispute had narrowed by the time of the trial to being about whether the time that the Father (and therefore the second and third Respondents) spend with X should extend from the current unsupervised day time only periods to overnight time.

5. On day one of the trial the Father made an oral application for a s 69ZW order to be directed to NSW Police and to the Department of Communities and Justice in relation to a sexual allegation purportedly made by X.  Similarly, the Mother made oral application for a short notice subpoena directed to the General Practitioner to whom X had allegedly made a sexual abuse disclosure.

6. The parties could offer no satisfactory explanation for why these steps had not been pursued with the Court in advance of the trial.  However, given the nature of the issues raised, the orders were made and leave granted.

7. Material was provided in response to the s 69ZW orders on the third day of the trial.

8. Each of the parties were granted access to the material and on the fourth day of the trial indicated that none of them wished to pursue any matter arising from the s 69ZW material.

9. On day three of the trial the parties and the Independent Children’s Lawyer provided consent terms to the Court that, in general terms, provided for the Mother to have sole parental responsibility, for X to live with her and to spend three daytime periods each fortnight with the Father and paternal grandparents.  The orders also provided for ongoing therapy for the Father, amongst other protective provisions.

10. Orders in such terms are controversial in this case, in large part due to issues involving the Father’s mental health, cognitive capacity and history of violence, along with Mr C’s history of violence. The criminal histories of the Father and Mr C were prominent issues in the case.

11. The Father was convicted, as a 17 year old, of a serious crime.  He says that the conviction was on the basis of his diminished responsibility.  The Father has also admitted assaulting the Mother, an assault that he admits involved him grabbing the Mother’s throat.

12. Mr C was convicted of seeking to engage a hitman upon the Father’s first wife and the Father’s sister’s first husband who he believed had been involved in an affair together.  He has described to the Single Expert that the purpose of the hitman was to have acid thrown in their faces in order to make them feel the pain he had experienced at their conduct.

13. Also on day three of the trial the parties handed up terms for the settlement of the property proceedings.  This was in the context of only sparse information being provided regarding the property dispute.

Approach to the proposed consent terms

1. As noted above, the parties proposed that orders be made by consent, in accordance with Exhibits C2 and C3.

2. Dealing firstly with the orders in respect of X, it is necessary that such orders, even if proposed by consent, be made with X’s best interests as the paramount consideration.  Significant weight can normally be placed on the fact that the parents together, along with here the Independent Children’s Lawyer and the paternal grandparents, assert to the Court that it is in X’s best interests to make the orders.  In assessing whether they can be described as in her best interests, s 60CC(5) provides that the Court may, but is not required to, have regard to all or any of the primary and additional considerations.

3. Here X’s best interest are best assessed by reference to the primary considerations, along with an assessment of her relationships with each of the parties and an assessment of their capacity to provide for her needs.

4. Key amongst those considerations is the consideration of the degree of risk the Father poses to X.  That risk flows from the Father’s previous use of force against another by strangulation, by the Father’s issues with emotional dysregulation and his use of force, including upon the throat of the Mother as late as 2016.  These were each conceded facts.  In addition, there were two other allegations that the Father had applied force to the throat of his previous Wife and the Mother, choking each of them.

5. In relation to the incident involving the Mother, the Father accepted that at the shopping centre he had both struck the Mother and that he placed his hand around her throat.[1]  While he accepted that X was nearby, he denied that she was in the Mother’s arms at the time, asserting that she was asleep in the pram.

   [1] Father’s oral evidence 17 February 2020

6. Troublingly, when the Father was asked what he was thinking when he assaulted the Mother by grabbing her throat he explained that it was a product of his anger, that he was not thinking, and that he “totally lost it.”  He described that he did not like the Mother very much at that time.  The Father accepted that it was a very dangerous thing to do, thinking that it would be “not pleasant” and that it could cause difficulty in breathing.  He accepted that the impact on the Mother may have been “pretty severe” particularly if, as was his case, the Mother was aware at that stage of the Father’s previous criminal conviction.

7. The Single Expert, Dr D, was asked about the consent terms, about whether they adequately dealt with issues of risk for X, and about whether they are in her best interests, in the context of the above matters.  It is noteworthy that the context for the Single Expert being asked to do this is that his report, prepared in 2018, then recommended a graduated increase in time between X and the Father, along with a transition into unsupervised time.  He further recommended a review of the matter in two years. 

8. Such changes as recommended occurred in the lead-up to the trial, which occurred approximately two years after the initial report.

9. The Single Expert observed that the transition since the preparation of his report showed regular and positive time being spent between the Father and X, and showed a good relationship between X, the Father and the paternal grandparents.  Importantly, he observed that there have not been instances of emotional dysregulation or violence occurring since 2016, which coincided with the ending of the relationship. The addition of the contested incidents referred to above did not, as far as the Single Expert was concerned, add to the risk.  He noted that the Father has in place good supports, and has developed a therapeutic relationship with his treating psychologist, Ms E.  Her descriptions of her interactions with the Father were considered to be positive indicators.

10. Ms E assessed the Father’s cognitive ability as in the Borderline Impaired range.  She thought that the Father “performed within normal limits on majority of executive function tests and has adequate verbal memory.” She noted that the Father thinks in a concrete manner and is deficient in terms of abstract problem solving.  She thought that he has the capacity to make decisions regarding X, with the qualification that he lacks the capacity to make decisions regarding long term issues such as which school X should attend.

11. Ms E has provided what she described as psychological intervention over 14 sessions from June 2018 until the present to work on mental health and emotional issues and is providing her services through bulk billing. She has an upcoming appointment with the Father and expects to see him each two to three weeks. The sessions have involved working on his emotional well-being. She described him as highly motivated, and as trying “very hard.”  She believed that he has developed improved insight. 

12. While she thought that the Father has issues with anger control and dealing with and the expression of emotions, she did not regard these as connected to his cognitive deficits.  He tends to repress his emotions for a period, which will then emerge in argument. 

13. Ms E thought that if the Father had choked the Mother that such conduct would be connected to his trouble in coping with stress.

14. She has been working with the Father on effective problem solving, and with skills to cope with his emotions.  She noted that the Father is now sharing his emotions with her, and they are working through the Father’s prior issues.

15. Ms E also explained that improvement could be seen in the Father’s emotional regulation, as, for example, he has been able to cope with difficulties he has experienced in his employment.  She also noted that the context of the therapy he has engaged in is the ongoing litigation which should soon be at an end.

16. Ms E’s expectation was that it would be necessary for the Father to continue to attend upon her until the end of this year, or mid next year.  As part of her role she indicated that she would make recommendations to him about his attendance upon her, and also about courses he should undertake.

1. She noted that the Father was eager to “learn material and intervention to improve his emotions and parenting skills” and to this end completed eight weeks of the Triple P parenting program.  This, she described, was a program aimed to assist parents of three to eight year olds with practical strategies to help them to manage the child’s behaviour, “prevent problems developing, and build strong, healthy relationships.”

2. These were observed by the Single Expert to be positive factors.

3. Ms E has, since the preparation referred the Father to a further parenting course, which has not yet commenced.  She did not see the Father’s cognitive impairment as preventing him from integrating learning from such courses, as the courses were directed to setting boundaries and engaging in consistent parenting.

4. The Single Expert recommended that, notwithstanding the engagement with the psychologist, that the Father also undertake Dialectic Behavioural Therapy in relation to anger management, potentially modified on advice from his psychologist to cater for the Father’s intellectual impairment.

5. The Single Expert’s conclusion was that risk posed by the Father via emotional dysregulation is sufficiently abated by:

   a)The Father’s engagement with therapy;

   b)The lack of an incident since 2016;

   c)The involvement of the paternal grandparents in the Father’s time; and

   d)The restriction in the amount of time to be spent with X being such as to reduce the need for the Father to have disciplinary input (being a potential trigger point for conflict and dysregulation);

   e)The loving nature of the relationship between X and the Father.

6. The Single Expert also noted benefits of time with the Father and his parents, and detriments flowing from not having such a relationship.  He noted that a positive relationship for X increases the positive input in her life, improves her sense of wellbeing, improves her self-esteem, self-image and self-concept, and gives her a positive father figure. 

7. The removal of such relationships would be a great loss, as there is currently a strong bond and attachment.  The loss may result in feelings of responsibility, guilt and self-blame for X, leading to sadness, the loss of positive relationship and of the improved wellbeing associated with the relationship.

8. These circumstances point to the appropriateness of the proposed orders as being in X’s best interests.

9. It is, firstly, appropriate that the Mother exercise sole parental responsibility for X.  The presumption in favour of equal shared parental responsibility has no application due to the conceded family violence.  The parties’ agreement as to parental responsibility is reflective of the incapacity of the parents to communicate, the fact that X lives predominantly with the Mother (on an uncontested basis) who will be charged with the decision making, and the evidence as to the Father’s cognitive deficits which, according to his psychologist means that he lacks the capacity to make long term decisions for X.

10. It is, secondly, appropriate to make the balance of the orders.  Together they provide a suite of orders, commended by the parents as in X’s best interests, which provide for a balance between X enjoying the benefits of meaningful relationship with the Father, and benefits of relationship with the paternal grandparents along with appropriate protections for X. The arrangements for X to spend time with her Father, occur in the context of ongoing therapy for him, where his therapy already has yielded positive results, along with the mitigation of risk of emotional dysregulation.  X is sufficiently protected by the suite of arrangements to enable her to enjoy the benefits of a relationship.

11. Although the time is limited to day time periods (unless the parents agree otherwise), such limitation reduces the need for the Father to engage with X as a disciplinarian, reducing the scope for a conflict productive of emotional dysregulation. 

12. The progress made by the Father in his treatment, the lack of further incidents since 2016, the support both professional and non-professional, the limited time he will have and the reasonable expectation of the involvement of his parents (notwithstanding their own limitations) means that, on balance it is in X’s best interests for the orders to be made.  She is sufficiently protected to enable her to receive the benefits of relationship with the Father and the paternal grandparents.

The proposed property orders

1. The proposed property orders provide for no adjustment of property interests, but that each party retain what is in their possession or control.  On the limited evidence as to contributions, the minimal pool and the matters set out at s 75(2) such orders are just and equitable.

Costs

1. The ICL sought an order that the Father pay one third of her costs at $5,381.69 and the paternal grandparents together pay one third of her costs at $5,381.69.  They resisted such an order based upon their financial circumstances, the Father being in receipt of a disability pension (as well as casual employment) the paternal grandparents having been forced to use their home for Mr C’s business, having relinquished his business premises, and having incurred significant costs in the pursuit of these proceedings.

2. The application for costs is governed by s 117.  Section 117 provides a starting point that each party will bear his or her own costs, unless circumstances identified at s 117(2) and (2A) justify a departure from that starting point.

3. I have only limited information as to the parties’ financial circumstances.  The property settlement agreed to by the parents is reflective of their limited financial means.  The material indicates that the Father has a long history of causal work, at times intermittent in nature.  He is also in receipt of a disability pension.

4. The paternal grandparents’ material is indicative of surplus finance being available to them, they asserting that, despite the Mother’s position that she had to return to work, they were well in a position to support her without working during the currency of the marriage.  The paternal grandfather repeatedly pointed to his largesse in arranging celebrations in respect of X.  They do not suffer the financial limitations of their son.

5. This is a factor that points to the paternal grandparents paying the ICL’s costs.

6. A further factor points to the paternal grandparents and the Father paying the ICL’s costs, which is the disposition of the case largely in terms sought by the ICL, and in the face of their pursuit of overnight time for the Father.  They were unsuccessful in this pursuit.  This is a factor to be considered at s 117(2A)(g).

7. This factor is sufficient to warrant a departure from the usual starting point, noting the statement made by the Hugh Court in Penfold v Penfold (1980) 144 CLR 311 to the effect that an applicant must merely identify justifying circumstances, and that there is no need for a clear case to justify a departure from the starting point set out at s 117(1).

8. Section 117(4) provides that if I am satisfied that a party would suffer financial hardship, I am precluded from making an order for the ICL’s costs.  I have not been satisfied by the Father or the paternal grandparents that, in relation to the modest costs sought by the ICL, their difficulties in meeting such a payment rise to the level of hardship.

9. In this case the Father and paternal grandparents should pay the costs as sought by the ICL.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 February 2020.

Associate: 

Date:  20 February 2020