Sarkis and Yeo

[2017] FamCA 871

FAMILY COURT OF AUSTRALIA

SARKIS & YEO [2017] FamCA 871

FAMILY LAW – CHILDREN – REVIEW OF SENIOR REGISTRAR’S DECISION – Where the father seeks five nights per fortnight with the three children – Where the mother alleges that the children have made disclosures of abuse – Where the mother seeks that the father spend time with the children supervised by the paternal family – Where the evidence cannot be challenged in interim proceedings – Where the allegations have not been substantiated but the risk cannot be ignored – Where each parent is denigrated in the other’s household – Orders made for the children to spend time with the father each alternate weekend and during school holidays in the presence of a member of the paternal family.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sarkis

RESPONDENT: Ms Yeo

INDEPENDENT CHILDREN'S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 1142 of 2016

DATE DELIVERED: 2 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Watts McCray

COUNSEL FOR THE RESPONDENT: Ms Messner

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

SOLICITOR FOR THE ICL: JPM Legal

Orders

IT IS ORDERED, PENDING FURTHER ORDER

1. That the children B born … 2007, C born … 2009 and D born … 2011, live with the mother.

2. That the children spend time with the father, during school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, the father to collect the children from school and return them to school.

3. That the time the children spend with the father is to be spent in the home of his parents or, if outside the home, in the presence of an adult member of his family.

4. That the children spend time with the father in each of the school holidays at the end of Terms 1, 2 and 3 for seven days commencing the day after the last day of term, the mother to deliver the children to the father’s residence at 10.00 am on that day and the father to return the children to the mother’s residence at 4.00 pm on the last day.

5. That in January 2018, the children shall spend time with the father from 10.00 am on 1 January 2018 until 4.00 pm on 14 January 2018. Provided that the father has, by 1 December 2017, provided the mother with copies of the airline tickets and a complete itinerary, together with telephone contact details for the children, the father shall be permitted to take the children to Country E from 2 January 2018 until 12 January 2018.

6. That the father ensure that, on any day that the children are in his care for the full day, they telephone the mother and speak to her at an agreed time and, in the absence of agreement, at 5.30 pm Sydney time.

7. That the father be restrained from causing or allowing B to shower with him.

8. That the father ensure that each of the children has her or his own bed on any occasion that they sleep at his residence.

9. That each parent be restrained from denigrating the other parent in the presence or hearing of the children, and they shall each do all reasonable acts and things to prevent any third party from doing so.

10. That pursuant to Sections 65DA(2) and 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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 Sarkis & Yeo 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 1142 of 2016

Mr Sarkis

Applicant

And

Ms Yeo

Respondent

REASONS FOR JUDGMENT

1. Ms Yeo (“the mother”) and Mr Sarkis (“the father”) have three children, B who will soon be 11 years old, C who is 8 years old and D who is 6 years old. The children live with the mother.

2. The parents separated in February 2014. Following separation, the father moved into the home of his parents, the children’s paternal grandparents.

3. Until 2017, the parents were able to agree on the appropriate arrangements for the children to spend time with their father. It is an agreed fact that until May 2017, the children spent five or six nights each fortnight with the father and half the school holidays.

4. On 2 August 2017, orders were made by Senior Registrar Campbell which provided for the children to spend time with their father on alternate weekends from Friday afternoon until Monday morning, provided that the time was spent in the home of the paternal grandparents or in the company of one of them.

5. The father sought to review the decision of the Senior Registrar and thus the matter comes before me for a hearing de novo. Because the matter is being determined on an interim basis, where there are matters of fact in issue, it is not possible to determine those disputes.

6. There is no dispute that the children have spent time with the father in accordance with the orders of 2 August 2017.

THE DISPUTE

1. Each of the parents asserted that the other has behaved in a manner which is destructive to the children’s relationship with the other parent. The mother asserted that the father undermines the children’s relationship with her, that they do not want to spend time with him and that he has acted towards them in a manner which could be found to be abusive. She also asserted that the paternal grandparents have acted inappropriately in relation to the discipline of the children and their criticisms of her to the children.

2. The father asserted that the mother has wilfully and deliberately interfered with the children’s relationship with him and prevented them from spending time with him.

3. Each of the parents describe a hostile and unpleasant relationship between them which is exacerbated, as will be seen, by the attitude of the paternal grandparents.

THE COMPETING APPLICATIONS

1. The children were represented by an Independent Children’s Lawyer (“ICL”).

2. The parties agreed on a range of machinery provisions. There was no dispute that it was appropriate that the children continue to spend time with the father on weekends.

3. They could not agree in relation to the following matters:

   ·    Whether the father’s time with the children should take place in the home of the paternal grandparents and in the company of one of them. (Both parties agreed that, if the presence of a third party was deemed wise, then any adult member of the father’s family was appropriate);

   ·    Whether the time the children spend with the father should be extended to five nights each fortnight or remain as ordered by the Senior Registrar;

   ·    Whether the children should spend time with the father on their birthdays and the father’s birthday;

   ·    School holiday time;

   ·    Whether the father should be permitted to take the children to Country E, in the company of the paternal grandparents, for 10 days in January 2018.

THE MOTHER’S EVIDENCE

1. The mother complained that in December 2015, B told her that the father was recording her on his telephone. B said the father told her that: the children should spend equal time with each parent; that the mother was not a responsible parent; and that he “swears when he speaks about you”. B also said, “Daddy said you want his money and you’re not getting a cent”.

2. Also in December 2015, B, then aged eight years, suffered an incident of vaginal bleeding.

3. In January 2016, the mother asserted that the children complained the father hit them and hurt them while they were with him for the holidays. The mother’s sister told the mother that, at her home, she saw the father grab the boys, who were fighting, and pull them apart so that they both fell and D hit his head.

4. In February 2016, the mother asserted that D returned to her with two thumb sized bruises on his upper arm.

5. In February 2016, B complained of pain and discomfort in her lower abdomen and genital area. She told the mother that the father gives her “special cuddles in his bed” and that she wanted to stay another night. The mother took B to the doctor. She was found to have an infection in her urinary tract.

6. The mother made a report to the Department of Family and Community Services (“DFCS”). The mother also arranged counselling for B with Dr F. Both the mother and the father attended the sessions with Dr F.

7. In March 2016, the mother asserted that the boys would plead to come home when she telephoned them at their paternal grandparents’ home and that they began to plead with her not to go to spend time with their father. The boys complained that the father favoured B.

8. In June 2016, the boys complained that their paternal grandparents hit them when angry.

9. After the June 2016 school holidays, the boys complained that their father took B to Luna Park but did not take them.

10. The mother deposed that, since mid-2016, B has complained that the father yells at her and that the paternal grandparents denigrate the mother to her.

11. In July 2016 B returned from contact and told her mother that she had experienced vaginal bleeding. B said she told her father but that he was too busy to take her to the doctor. The mother took B to the doctor and she was diagnosed with a urinary tract infection. The mother was not told what had caused the bleeding. DFCS recommended that the mother obtain a referral to a paediatric gynaecologist.

12. The mother deposed that the boys persisted in saying they did not want to go with their father.

13. On one occasion of changeover when the boys refused to go with their father, there was yelling and shouting and the father told the boys that they could stay with the mother but that he would keep B for extra nights.

14. The boys continued their complaints through August, saying that their father hit them and they felt unsafe.

15. On 22 August 2016, D again returned home with a bruise on his inside forearm.

16. On 12 October 2016, the children returned from the father. The mother deposed that, during dinner, C started to cry and said that he wanted to end his life because of the way his father and paternal grandfather treated him. On 8 November 2016, C again told his mother that he wanted to end his life. He described being interrogated by the father about his mother and frightened of his father.

17. In mid-November, the mother deposed that B said to her “When we talk to Dad about stuff that we have discussed with you he always says to us that you brainwash us”.

18. In December 2016, B told the mother that she and the father would spend the night of her birthday at a hotel in the city together and that this was a secret. She also told the mother that “Daddy likes me to shower with him”.

19. On 17 December 2016, D invited his mother to feel his penis and told her that his father “does it all the time”. The conversation between D and the mother is set out in her affidavit. D said that he asked his father to stop but the “Daddy doesn’t”. The mother asked C if the father had touched his penis and C said that he had. B was present when the conversation took place. She accused the boys of lying, saying “Liar, liar. Daddy has never done that”. C said “Yes he has”.

20. The mother contacted DFCS. The Joint Investigation Response Team (“JIRT”) contacted the father and asked him to bring the boys for an interview. On 20 December 2016, JIRT contacted the mother and said that B had told the father about the boys’ disclosures before they were interviewed. The JIRT representative expressed concern that the interviews were contaminated.

21. The mother asked the father to sign an undertaking to the effect that another adult would be present when the children were with him and to facilitate telephone contact between her and the children. He signed the undertaking and the contact visits continued.

22. On 8 February 2017, C told the mother that his father had instructed him not to say anything bad about the father to the police. In the same conversation, C spoke of his father, paternal grandparents and aunt making derogatory comments about the mother to him.

23. On 12 February 2017, C told his mother that the father, the paternal grandparents and B were all angry with him for saying that his father touches his penis.

24. On 2 May 2017, D told his mother that his father still touches his penis. The mother again contacted DFCS. D was taken to be interviewed by JIRT on 4 May 2017 but he was ill and the interview did not take place. On 5 May 2017, D told JIRT that his father touches his penis both in the bath and in public when other people are around.

25. The mother set out a series of complaints about difficulties in having telephone contact with the children when they were with the father.

26. In July 2017, the children complained to the mother that they had been locked out of the house by their paternal grandmother.

27. The mother deposed that, since the Orders were made on 2 August 2018, the boys have reported to her that the father continues to denigrate her to them and that he continues to refuse to allow them to speak to her on the telephone.

28. The boys have reported that the paternal grandparents have yelled at them and that they have been locked out of the house on a number of occasions.

29. The mother lists her complaints about the sleeping accommodation in the paternal grandparents’ home, about the vigilance of the paternal grandparents’ supervision and about their derogatory comments to the children about her.

30. B has become an advocate for her father, telling the mother that the father thinks that it is unfair that they do not spend more time with him.

31. The mother has received a number of  text messages from the paternal grandfather, one message sent on 19 December 2016 read:

    One day your disgraceful behaviour will come back and bite you. We will fight this all the way, you will fail, because the truth will always prevail. And the courts are used to lying low life’s (sic) like you … your duty of care to the children as a mother is very questionable. You will rot in hell.

THE FATHER’S EVIDENCE

1. The father deposed that he spent regular time with the children until May 2017 when the mother commenced, unilaterally, to withhold the children from him, insisting that his time with them be supervised.

2. On 5 May 2017, the children did not attend school. The mother said they were sick. The father suspected that she was withholding them. The father later spoke to B who told him they had been to their favourite restaurant the previous day.

3. On 11 May 2017, all three children were at school. The father deposed that the school principal told him that the mother collected them early to attend a doctor’s appointment.

4. On 12 May 2017, both parents arrived at the school to collect the children. The principal attempted to mediate. The police were called and attended at the school. Police interviewed the children and declined to intervene. The father deposed that he was subsequently told by the children that the mother had rewarded them with gifts.

5. The children did not spend any time with the father, other than at their sporting events, until the orders were made by the Senior Registrar on 2 August 2017.

6. Telephone calls have occurred but the father complains that the phone is on speaker.

7. The father deposed that, since the children resumed spending time with him after the orders of 2 August 2017, B has told him that she is very happy to be seeing him again and that C has said that it is not fair that he only sees his father for two days out of 14. The father does not depose that D has expressed any wish for more time.

THIRD PARTY MATERIAL

1. These are interim proceedings and, as I have already stated, no findings of fact can be made in relation to matters where the parties disagree. As can be seen from the narrative of their complaints, those matters are numerous.

2. There is some independent evidence of what the children have said in the documents produced on subpoena. I note, however, that what children say cannot always be taken at face value, especially when there is no opportunity to test the evidence and the Court has no assistance from an expert.

3. In that regard, the parties had formerly agreed to appoint a psychologist, Ms G, as single expert and appointments had been arranged for Ms G to see the family in June 2017. Had the father not resiled from that agreement, the Court may have had the benefit of a report from Ms G which may have been of great assistance.

4. Those appointments have been rescheduled and Ms G will now see the family in March 2018. In the meantime, caution must be exercised so as to cause no more stress to the children than they currently experience.

5. Documents produced by the NSW Police in relation to the interview by JIRT with D record that D said that his father touches his penis when he is bathing him. He also said that he misses his mum when he goes to his dad.

6. Documents produced by B and C’s counsellor record that on 3 October 2017, B said that she only sees her dad for two days out of 14 and that she would like to see him for seven days. On 31 August 2017, C is noted to have told the counsellor that he had not seen his father for some time until recently. C said “…the first time I saw him it was good & the second time, but the third time he started being mean … He bought [B] a phone & stuff. He won’t let us talk on the phone”. C told the counsellor that it would be good if he could see her on Mondays after he had been with his father.

7. Documents produced by DFCS record that on 19 December 2016, the father told DFCS that “[B] told him last night that she overheard the boys lying to their mother about him touching their penis”. The father wanted DFCS to interview B.

8. A transcript of the interview with C on 19 December 2017 was produced by DFCS. Notably, C told DFCS that he dislikes “When Dad gets angry and [Grandpa] and [Grandma] get involved/[Grandpa] says bad words.”

DISCUSSION

1. The primary objects of the Family Law Act 1975 (Cth) require the Court to consider the benefit to the children of having a meaningful relationship with both of their parents whilst giving priority to the need to protect them from psychological harm.

2. There are two aspects of possible risk of harm that are identified in the allegations made by each of the parents.

3. The first area of risk arises from the allegations made by the mother in relation to the father’s inappropriate touching of the boys. The evidence in relation to those allegations is set out in the mother’s affidavit and in the documents produced by the police. Although risk of harm has not been found to be established by the police, or by JIRT, the material has not been tested and the risk cannot be discounted.

4. The second, and, in my view, more insidious and serious risk, is that the children are being exposed, in each household, to derogatory comments by each parent about the other and, in the father’s household, to the additional denigration of the mother by the extended paternal family.

5. The parents have consented to orders restraining each of them from denigrating the other. There is no order which binds the other members of the paternal family. 

6. Neither of the parents seeks an order for equal shared time. For the reasons which follow, such an order would not be appropriate at this time.

7. The children’s views have not been canvassed by an expert and great caution needs to be exercised when considering what each of the parents say about what the children have said.

8. B is a vocal advocate for her father. She has told her counsellor that she wants to spend half of her time with him and she has also told her mother the same thing. There are many reasons why B might be expressing those views including, but not limited to, the fact that she is favoured by her father and given treats by him which are not given to the boys. The weight to be given to B’s expressed views is a matter ultimately to be considered having regard to the evidence of the single expert Ms G.

1. There is no independent evidence of the views of C and D. C has expressed reservations to his counsellor about going to his father and has told the JIRT interviewer about his father being angry with him and the involvement of his paternal grandparents.

2. There is no independent evidence in relation to D.

3. What appears to be clear is that there is a wide difference between B’s expressed views and those of the boys.

4. There is no dispute that the children have a close and loving relationship with their mother. The children’s relationship with their father is less clear. B has a close and loving relationship with him. The relationship of the boys with their father cannot be determined on the available evidence but they appear to express some reservations about him. It is not possible to determine what the relationship of the boys with the paternal grandparents is. They complain about harsh discipline and yelling.

5. The respective parenting capacities of the parents cannot be determined. If either has acted to undermine the children’s relationship with the other, then that is a serious defect in her or his parenting capacity. There is some evidence that the father has favoured B to the detriment of the boys but I cannot determine whether this is the case or whether the father is differentiating between the children on a basis that is age appropriate.

6. The complaints made by the boys in relation to their treatment by their paternal grandparents give rise to concern about the appropriateness of the paternal grandparents’ treatment of them. Further, the text messages from the paternal grandfather which are referred to in the mother’s affidavit raise serious concerns about his willingness to denigrate her and leads to a concern that he is willing to do so to the children, as they have complained he does.

7. A further concern in relation to the willingness and capacity of the paternal grandparents arises from an incident in October 2015 when C was injured falling through a window. The mother telephoned the paternal grandmother and asked for her help in caring for the other children so she could take C to hospital. The paternal grandmother refused. The mother deposed that she asked the father why the paternal grandmother would not help her and he said “Get used to it … because that is how it is going to be from now on”.

8. I am unable to determine whether, as the boys allege, there has been family violence perpetrated on them. The parties have both consented to an order restraining them from physically disciplining the children and ensuring that a third party does not do so.

9. One of the primary responsibilities of a parent is to respect the other parent and to foster the children’s relationship with that parent. I cannot determine, on the evidence before me, whether either parent has failed in that responsibility. If either has, it is a serious matter.

10. I am conscious that the orders that will be made today will determine the arrangement for the children for at least six months. It may be that, when Ms G’s report is available, the ICL can arrange for the parties to attend mediation and some other arrangements can be reached, having regard to her recommendations.

11. In the meantime, I accept the submission on behalf of the ICL that some oversight of the children’s time with the father is required, having regard to the allegations made by the boys and to B’s statements about showering with and sleeping with her father. (In this regard I note that the father denies that either event has occurred and consents to an order, without admissions, that it will not occur). I also accept, as the parties have agreed, that other adult members of the paternal family can be present with the children.

12. As to the frequency and length of the children’s time with the father, during school terms, while the father’s proposal may suit B, the evidence suggests that it would not be acceptable to C and D. There is no suggestion that the children should be separated or that different arrangements should apply to B. Therefore the arrangements that are put in place will be the arrangements that best suit the boys. I am not satisfied that the boys can tolerate more time with the father than is currently occurring, having regard to their complaints about the time they spend in the home of their paternal grandparents.

13. C’s conversations with the mother about suicide are of great concern. I cannot determine, without the assistance of an expert, what pressures might be influencing C but I am conscious to avoid, wherever possible, putting any unacceptable stress on C.

14. A different consideration applies to holidays. Without the pressures of school, there is an opportunity for the children to do fun things with the father, hopefully not in a way that will leave the boys feeling that B is favoured. The orders will provide for the children to spend half of the short school holidays with the father.

15. The father proposed that the children travel to Country E with him and the paternal grandparents in January 2018, leaving on 2 January 2018 and returning on 12 January 2018. He deposed to C’s excitement about the prospect of the trip. The paternal grandfather has worked in Country E and can share his knowledge of Country E with the children. The paternal grandparents will pay for the trip. The father will need the permission of his Trustee in Bankruptcy to leave Australia.

16. The children should be given the opportunity to experience the trip. The orders will provide that they spend the period from 1 January 2018 until 14 January 2018 with the father and that he be permitted to travel with them to Country E.

17. I do not propose to order that the children spend time with the father on their birthdays or his. His proposal would necessarily involve contact between the parents and any contact between the parents in the presence of the children, having regard to the hostility between them, is to be avoided.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 November 2017.

Associate:

Date:  2/11/2017