Sagar & Janushan
[2023] FedCFamC1F 264
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sagar & Janushan [2023] FedCFamC1F 264
File number(s): PAC 5950 of 2019 Judgment of: HANNAM J Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – PARENTING – Ex Tempore Reasons – Suspension of interim orders pending final judgment. Legislation: Family Law Act 1975 (Cth) ss 60CA, 68B Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 15 February 2023 Place: Parramatta Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Ms Ito Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor Counsel for the Independent Children's Lawyer: Ms Dart Solicitor for the Independent Children's Lawyer: Matthews Folbigg Pty Ltd ORDERS
PAC 5950 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAGAR
Applicant
AND: MR JANUSHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
15 February 2023
THE COURT ORDERS THAT:
1.Order 15 of orders made 23 August 2922 is discharged.
2.Order 20 of orders made 23 August 2022 is varied to include order 20.3 set out below:
20.3The father is also restrained from contacting or attempting to contact the mother through any means including through a third party except through both parties legal representatives.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
In the course of final submissions, an application was made for discharge of the current order with respect to the child’s weekly telephone communication with the father. The ICL seeks discharge of the order and the mother consents.
The evidence of the family consultant which was not challenged in any way through a single question by the father’s counsel was that there are a number of risks associated with the current telephone communication. First, the father not being able to regulate his emotions which is supported by the unchallenged evidence reported to the family consultant from the child herself that the father cries on the telephone and places emotional pressure upon the child. Second, the child appears to blame the mother in some way for the circumstances in which she has such limited contact with the father now, and there is a risk that that can become the subject of conversation in effect fuelled by the father, which could have the tendency to undermine the relationship with the mother.
It had been suggested that this could be overcome or mitigated by supervision and the question arose as to whether the mother could supervise or alternatively monitor those phone calls. However, there is unchallenged evidence including some which is consistent with the father’s own evidence that the mother has been the victim over many years of coercive and controlling conduct which clearly falls within the definition of family violence[1], a matter which has not been addressed at all by the father in submissions made on his behalf. In all of those circumstances and particularly as identified by the ICL’s counsel, at this time of heightened emotions when the proceedings are to be adjourned pending judgment, it would be unreasonable to put that role on the mother and place undue pressure on her to be monitoring the calls.
[1] S 4AB of the Family Law Act 1975 (Cth)
Considering there is no other way to safeguard the child from the risks associated with the phone calls which the family consultant described as the same risks that arise from face to face contact, in particular to do with the emotional pressure and inability of the father to control and regulate his own emotions and the risks that flow to the child from it, I accordingly discharge that order for telephone time.
Having discharged the order for the child to have telephone contact with the father, there is no reason why the father needs to have any contact with the mother. They have no ongoing relationship, the mother holds sole parental responsibility and there is in the interim to be no contact between the child and the father.
There is also ample evidence which was not challenged either through cross-examination or even commented on in submissions from which it can be found, even at this interim stage, that the mother has been the victim of significant family violence over many years in the relationship continuing up until very relatively recent times and certainly following physical separation. The father appears to have no insight at all into the fact of his coercive control over the mother, the impact that has upon her and her high levels of mistrust in the parenting relationship, and that flows on to the child. In fact it is quite extraordinary that this mother remains a mother of such goodwill and good intentions towards the father, but she has made it very clear how she experiences contact from him, and in the absence of him having no insight about being the perpetrator of family violence or the impact that that has upon her or upon the parenting relationship and thus flowing through to the child, I do intend making that restraint.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 15 May 2023
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