Sarkozy & Sarkozy
[2024] FedCFamC1F 338
•21 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sarkozy & Sarkozy [2024] FedCFamC1F 338
File number: SYC 4887 of 2021 Judgment of: ALDRIDGE J Date of judgment: 21 May 2024 Catchwords: FAMILY LAW – PARENTING – Application for final parenting orders – Children in the father’s care leading up to final hearing – Father and Independent Children’s Lawyer proposed the father have sole parental responsibility and the children live with him – Mother sought sole parental responsibility and the children live with her – Allegations of abuse and family violence – Expert evidence suggests the mother poses a risk of harm to the children – Expert evidence corroborated by evidence from the parties’ adult children – Children to live with the father and spend limited supervised time with the mother. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 2–4 April 2024 Place: Sydney Counsel for the Applicant: Mr Norrie Solicitor for the Applicant: Graham Chegwidden Solicitor & Barrister The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Druitt Solicitor for the Independent Children’s Lawyer: Marsdens Law Group ORDERS
SYC 4887 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SARKOZY
Applicant
AND: MS SARKOZY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
21 MAY 2024
THE COURT ORDERS THAT:
1.The applicant father have sole parental responsibility for the children X born 2011 and Y born 2014.
2.The children live with the father.
3.The children spend time with the respondent mother as follows up until each child reaches the age of 14 years, from which thereafter time with the mother is to accord with each of the children’s wishes:
(a)Once every three months at 10.00 am on the first Saturday of each NSW government school holiday period unless otherwise agreed in writing between the parties no less than seven days prior to the date the time is to occur;
(b)Supervised by one of the following persons unless otherwise agreed in writing no less than seven days before the time is to occur and in the alternative, by a private supervision service nominated by the mother;
(i)Ms C
(ii)Ms D
(iii)Ms E
(iv)Ms F
(c)For a period of no more than 30 minutes, and if time is to be supervised by a private supervision service, with the duration of such time to be determined by the availability of that service;
(d)To occur at B Family Services, Suburb G or any other B Family Services premises as nominated by the mother within the Sydney metropolitan area or as otherwise nominate by the supervision service; and
(e)The costs of the venue for supervised time and/or any private supervision is to be shared equally between the parents.
4.The mother and the father are each restrained from:
(a)Speaking, or permitting any other person to speak, to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children;
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so;
(c)Contacting or attempting to contact the children by any direct or indirect means, save and except as provided for in these orders; and
(d)Physically disciplining the children or permitting any other person to do so.
5.Save and except for any written consent provided by the father, the mother is restrained from attending:
(a)H Church;
(b)Any school attended by the children; and
(c)Any event attended by the children.
6.The mother is authorised to send any cards and/or letters understanding that any correspondence received for the children will be inspected and vetted by the father prior to being given to the children.
7.The mother is at liberty to send the children any gifts on their birthdays or at any other significant events or special occasions.
8.Within 14 days of these orders the Independent Children’s Lawyer meet with the children to explain these orders.
9.The balance of all outstanding applications and responses insofar as they pertain to parenting are dismissed.
10.The application for property settlement orders is listed for directions in person before Justice Schonell on 4 June 2024 at 9.30 am.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Sarkozy & Sarkozy has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
These are parenting proceedings between Mr Sarkozy (“the father”) and Ms Sarkozy (“the mother”) concerning their two younger children, X born 2011 and Y born 2014.
The proceedings were overshadowed by a Single Expert Report prepared by Dr J, the Single Expert psychiatrist of 16 February 2023.
Dr J opined:
I formed the view on balance that [the mother] was suffering from a [mental health] disorder with paranoid features and that this was fuelling her erratic behaviour. I believe the trauma diagnosis from her early childhood obfuscated the paranoid disorder, which has been overlooked even though some professionals have suggested the possibility of paranoid ideation such as [Ms K] on 3 August 2021.
In relation to contact, this is difficult in that I believe that [the mother] is mentally unwell and therefore finds it difficult to control her thoughts and belief patterns. Contact would need to be closely supervised. Under the current situation it would need to occur perhaps once every three months in a recognition style of contact. [The mother] is mentally unwell, as such, I believe she is unable to represent herself satisfactorily and needs a guardian to assist her with the legal process…
(Single Expert Report of Dr J dated 16 February 2023, lines 10–19)
That last comment led to an application by the father for the appointment of a case guardian, but ultimately the application was not pressed.
Another significant factor was the failure of the mother to prepare for the hearing.
Directions for the preparation of the trial were made by Schonell J on 27 October 2023. The orders required each party to file and serve a consolidated trial affidavit on or before 1 March 2024. His Honour added:
10.The compliance with these directions is not optional. The consequences of non-compliance can include orders for costs, including on an indemnity basis.
11.In the event that a party does not comply with these directions the court will give consideration to proceeding with the matter on the basis of evidence filed to the date of non-compliance.
The matter was ultimately listed for hearing commencing 2 April 2024.
On 27 March 2024, a lawyer instructed by the mother applied to vacate the hearing. There was no evidence to support the application and no reason was given for the non-compliance with the orders of Schonell J. I was informed that a draft affidavit had been prepared, but that the lawyers would not be ready to run the hearing on the mother’s behalf by the following week.
For reasons given at the time, the application was dismissed and the lawyers were not excused from appearing.
On 2 April 2024, the lawyers made a further application to be excused, this time on the basis that differences had arisen between them and the mother as to the conduct of the hearing. They were granted leave to withdraw and thereafter the mother represented herself.
The mother sought leave to rely on an extensive affidavit she had prepared which was ultimately granted. She also sought to tender a number of documents, many of which were rejected for a number of reasons, as is evident from the transcript. Included in those documents, were letters or documents from her treating psychologist and others addressed to “to whom it may concern”. As was pointed out at the time, these documents did not identify the qualifications of the authors of the reports, the basis on which they were made or how it was that they had reached their conclusions in them. More importantly, because the Independent Children’s Lawyer and the father were unaware that the mother intended to rely on them, they were denied the opportunity to test these reports by subpoenaing the relevant practitioner’s notes or having them available for cross-examination.
It followed that, apart from the mother’s cross-examination of the Single Expert, his report remained unchallenged at the end of the hearing.
The father was cross-examined by the Independent Children’s Lawyer. The Independent Children’s Lawyer also asked some brief questions of the mother.
The parties’ eldest daughter, Ms L, provided an affidavit in support of the father and was required for cross-examination, but ultimately the mother decided, for justifiable reasons, not to pursue that course.
At the end of the hearing the Independent Children’s Lawyer sought orders that the children live with the father who was to have sole parental responsibility. The proposed orders were for the children to spend time with the mother for 30 minutes, supervised at a contact centre, once every three months.
The mother continued to seek orders that the children live with her and that she have sole parental responsibility for them. Her suggested orders involve the children spending limited supervised time with the father.
The father’s proposed orders followed the same approach as the Independent Children’s Lawyer.
HISTORY
The parties commenced a relationship in 1996 and were married in 1997. The parties separated on 10 March 2021 when the father removed the two younger children from the matrimonial home leaving the mother there alone.
The parties’ first child, Ms L, was born in 1999. Ms M was born in 2000 and Ms N was born in 2003. Each of these children was extensively home-schooled, principally by the mother. All three elder children have excelled in their post-school education.
X was born in 2011 and Y in 2014.
Early in 2021, the three eldest children left home for various reasons. In early 2021 the father left the matrimonial home and moved to reside with his parents, taking X and Y with him.
Later that month, the father, X and Y returned to the matrimonial home. In addition to the mother, her parents were now staying there. Following this, X appeared to be upset and anxious when he arrived at school, where he later disclosed that his mother had placed her hands around his throat and attempted to choke him. The father took X to a general practitioner who referred X to a hospital. The referral letter contained the following:
•Thank you for seeing [X] for risk of self harm/fear of returning home to live with violent mother/depressive symptoms. He wants to “see his own blood”.
•His mother has complex PTSD and has on many occasion threatened death to her children, attempted to strangulate [X] and multiple other manipulative behaviour.
•I have asked the child and father not to return to the family home.
(Exhibit MRS-3 to the father’s affidavit filed 1 March 2024)
Although X was found not to have any acute mental health issues by the hospital, all members of the team that examined him agreed that discharge home would not be safe for X and that he should live elsewhere (Exhibit MRS-4 to the father’s affidavit filed 1 March 2024).
The father then took the children and returned to live with his parents.
X attended three visits with the mother after early 2021 and then refused to see her anymore, saying that he was too stressed to see her and that he had given her a chance (father’s affidavit filed 1 March 2024, paragraph 112).
In mid-2021, a provisional apprehended domestic violence order was issued against the mother for the protection of X (Exhibit MRS-5 to the father’s affidavit filed 1 March 2024).
PARENTING
The father’s evidence was that the mother had been in the care of mental health professionals for much of their relationship, although he did not know the details of her treatment but understood that it related to a post-traumatic stress disorder arising out of matters which occurred during her childhood. He said that she often said she was depressed and made threats about injuring and harming others or making untrue statements about them. Examples from the father’s affidavit filed 1 March 2024 include:
·For many years the mother relayed accusations that the father had anal sex with his boss at his place of employment and telling the children that the father had anal sex with someone in the park (paragraphs 29–30).
·Throughout the relationship, saying to the father “I will stab you”, “I will get a knife and fucking kill you” and “I’m going to get a knife and slit your throat” (paragraphs 58–59).
·Accusing the father and Ms L of having a sexual relationship, including in the presence of the other children (paragraph 80).
The father’s affidavit is also replete with evidence of the mother continually denigrating the father and the children.
The contents of the father’s affidavit are largely confirmed by the affidavit of Ms L and what the other adult children told the Single Expert. The mother was variously described by them as paranoid, violent, emotionally detached and very angry. They did not feel safe with her and believed that she needed help.
The mother’s affidavit contained allegations that seem to be most improbable, for example:
159.The father wanted a permanent holiday in a [campervan in] 2021, but I was terrified to travel anywhere with the father. The father had contacted my parents to ask whether he could stay at their home “alone” with the children. Where would the mother be?
(Mother’s affidavit filed 2 April 2024, paragraph 159)
The campervan was mentioned several times during the hearing. There is no evidence that the father owns or has ever owned a campervan (although he did once suggest a holiday in one). The mother’s conclusion from this paragraph is that the father would “get rid” of the mother in some way, possibly by killing her, if she went with him in a campervan.
Other matters raised by the mother included (mother’s affidavit filed 2 April 2024):
•I asked the Department of Communities and Justice on 19 April 2021 about my children and I was told that the children had to miss 100 days of school before I could report (paragraph 168).
•From 2016 to 2020 the father appeared to be on a deliberate campaign to provoke me, my glasses and keys and hairbrush would go missing, he would get angry with me, would not talk to me or tell me what was going on, with cameras at the ready to record me out of context… (paragraph 169).
•The father would do most of the cooking and serve my plate but the food was making me physically sick. The father boasted in social circles that he had secretly acclimatised me to the taste of coriander by adding small amounts of coriander to all sweet and savoury cooking. The father boasted that he gradually increased the coriander without me knowing so that I grew accustomed to coriander like a frog boiling in water. I was fearful after this that the father could be tampering with my food as he did almost all of the cooking and I had been so unwell. In the final period of our marriage I was living in a separate room of our home and I ate very little of his prepared food and I felt that my health improved (paragraph 186).
•The father told me that the tiler from our home at [O Street] “disappeared” after the work stint and that afterwards all of his tools had mysteriously been found at my inlaws. I was given a signed blank cheque and was told to write the cheque for whatever the tiler asked for (paragraph 246).
•The father told me lots of stories, for example, that growing up they would frequent a restaurant […] but that the restaurant never had any customers because the restaurant was a drug front (paragraph 250).
Dr J recorded the following comments made by X and Y.
[X]
I asked about his mother. X was a little pensive and he was slow to answer. Then he said, “it’s like a mixed relationship. She’s nice. She’s often unwell. Sometimes it’s good but sometimes a bit disturbed. It’s normal and then she’ll snap.” He enjoys spending time with her and going to the park.
I asked what were the problems that had affected his parents. [X] responded, “I’m not sure how it started. I forgot. Mum and Dad were fighting. I told the school one thing that she held me tightly around the neck. I forgot why. She grabbed me in the hall.” [Ms N] and [Ms L] were also in the house but did not see the event and his father was at the shop. “I was crying. I went to my room. It was the worst. Normally she would just smack and hold me by the chin.”
I asked what his main wishes were. [X] responded, “I’d like mum to be calm and not snap with us. I’d like to be able to see mum more. I don’t want mum to go to gaol.” [Y] and his mother are also close.
…
[Y]
[Y] described a good relationship with all of his siblings. I asked about his father. He said, “it’s good.” I asked about his mother and his response was, “she doesn’t interact much. I get on normal with her. She is nice.”
I asked what had happened between his parents. [Y] responded, “Mum mistreats us or something. Dad took us to [Suburb P]. I’m not sure why.” He was having visits with his mother and then they would stop. I asked if anything bad had happened to him and he stated that nothing bad had happened. [Y] was not sure what to wish for. He was not sure what was best or what was possibly the worst. I asked what the main problem was and he said, “Mum leaving dad.” He said he would like his mother to come home and for them to all be living together again.
[Y] said that he has developed some anxiety symptoms about germs and said, “I’ve got a germ phobia.” He has been diagnosed with obsessive compulsive disorder, he claimed. He does not like to touch dogs or cats and will need to wash his hands. He washes his hands a lot if he touches the ground. I asked [Y] what he would like the Judge to decide. He looked down and was quiet. He said, “it’s too hard.” He was concerned that his sisters did not relate well to his mother. “They don’t get on well” I asked why. He said, “Mum has been angry.” Nevertheless, he would like to be able to see his mother more and have time with her. “I’m not sure if she’s bad or good. I’m not sure now.” He expressed that he was feeling confused. He was aware that there had been some conflict last year and that [X] was involved. “She blamed [X] for the separation. She locked [X] in a room.”
(Single Expert Report of Dr J dated 16 February 2023, lines 546–558, 585–594 and 606–614)
Just pausing here, the mother cross-examined the Single Expert to ask how it could be that she had a mental health disorder, when she had home-schooled the children and they have all gone on to be successful. The response was that the two concepts were not incompatible and that having a mental disorder did not necessarily, for example, prevent a person from properly schooling their children at home.
As to the children, they became used to the mother’s behaviour, that was the way she was.
As to the mother, the Single Expert recorded:
[The mother’s] mood fluctuates and she is still upset noting “He stole the children. He tried to get rid of me.” I asked what she meant by getting ‘rid of her’ and she explained that there was a plan to buy a [campervan] and to go travelling when she believed that there was a plan to kill her. I asked if she could explain what she meant and she explained the plan was that he would return to Sydney with the children and that she would not be there. I asked what would have happened to her and she seemed to become a little tangential at this point. She began talking about home schooling and how [the father] had wanted her to do the home schooling with the children as if it was a way of keeping her at home. They had consulted with [Q Health Service] regarding [X] who was distressed and [the father] had not wanted him to be assessed.
I asked again about what the plan was with the [campervan]. [The mother] explained that [the father’s] parents had assisted two of the children “to get rid of two spouses” and these two spouses were eliminated although it wasn’t clear whether they were killed. “They got private detectives to convince them two.” [The mother] said she hopes private detectives have not been following her but she said she would not be surprised. I asked again about getting rid of her. She said, “Yes they wanted to kill me and to leave me in the desert.” [The mother] believed that [the father] and his family wanted to get rid of her and the family would bully her.
(Single Expert Report of Dr J dated 16 February 2023, lines 365–381)
In his oral evidence, the Single Expert agreed with the mother that an interview of approximately two hours was a fairly short time in which to make a psychiatric diagnosis, but he added that he had had access to a vast amount of material, which is recorded in his report, and that he took that material into account, feeling it was sufficient to allow him to make a provisional diagnosis.
Taking these matters into account, the Single Expert opined:
I formed the view [the mother] has a provisional diagnosis of [a mental health condition] described in the DSM-5 as a [mental health] disorder […]. There may be a previous history of post-traumatic stress disorder however, this appears to be an ongoing narrative which I do not believe explains [the mother’s] behaviour. The [mental health] disorder is not a form a schizophrenia or bipolar affective disorder but there are significant delusional beliefs that are odd, but not bizarre in nature. The delusions are can [sic] be of various types, which I would regard as a jealous and persecutory type.
…
In terms of the [mental health] disorder and reasoning for this diagnosis, it does appear that [the mother] does have fixed false beliefs that are out of proportion and do not shift regarding [the father], the legal system and the Police. Her behaviour is odd in that she is writing to the Prime Minister and other authorities regarding her mistreatment, as well as the belief that [the father] has been unfaithful and having homosexual affairs, as well as other affairs such as in the affidavit of 26 July 2021 after the colonoscopy. At interview, [the mother] believed that [the father] was going to murder her if she went on a trip in the [campervan] and that she would not return. She believed that two of the spouses of [the father’s] siblings had disappeared or had been dealt with by private investigators and that she may have also been subjected to private investigation. She referred to experimental medications being given on the property of her parents‑in‑law and that they did not try to help her rather they were medicalising her to manipulate her, such as sending her a [mobility aid] when she was unwell. She felt that her lawyer had misrepresented her. She [was] described as being paranoid by [Ms N], and has expressed the fears that the Police, the Court system and her father were coordinating against her. She became enraged for no obvious reason and she could not trust authority figures. Left untreated, the disorder will most likely persist and worsen. The differential diagnosis is [a mental health] disorder, [a mental health disorder], depression or possibly there has been significant severe past trauma which has disrupted her ability to trust others.
(Emphasis in original)
(Single Expert Report of Dr J dated 16 February 2023, lines 940–956)
This led to the conclusion that the mother presented an unacceptable risk to the children, even though they love her and she loves them. This was because the Single Expert felt the mother was mentally unwell and suffering from a mental health disorder which was impacting on her ability to be a healthy parent. He said:
Therefore, I formed the view that [the mother] did present as an unacceptable risk to the children even though they love her and she loves them. I believe that she is mentally unwell and is suffering from a [mental health] disorder which is impacting on her ability to be a healthy parent.
(Single Expert Report of Dr J dated 16 February 2023, lines 989–991)
In regard to possible outcomes, the Single Expert said that it would be a sad outcome for the children to spend no time with the mother. He went on to opine:
The second possibility is supervised recognition contact, perhaps up to 5 or 6 times per year. This would allow the children to see their mother and be able to maintain at least some visual relationship with her however, it would be unsatisfactory in that their relationship couldn’t develop into a more meaningful level. Recognition contact would protect the children from the mother’s mental health problems and her [mental health] disorder.
The next option would be to allow unsupervised substantial contact. I would be very concerned about unsupervised contact as [the mother] does not have any insight into her [mental health] disorder. She believes that the Court, the Police, [the father] and [Ms L] are all against her. She found it difficult to contain her anger in the joint appointment with the children where she made it extremely clear that she felt the children had been stolen from her, that she objected strongly to not being able to see the children and she expressed this inappropriately in front of the children.
(Single Expert Report of Dr J dated 16 February 2023, lines 1062–1073)
Best interests of the children
Having regard to the totality of the evidence in this matter, I have no difficulty in accepting the opinions of the Single Expert. However, if the views of the Single Expert were to be put entirely to the side, the evidence of the adult children, as expressed directly or via the Single Expert, which I also have no difficulty in accepting, is sufficient to persuade me that the mother poses a risk of harm to the children which can only be ameliorated by infrequent supervised time.
The Court must make orders that are in the best interests of the children, and to that end, it is required to have regard to the considerations set out in s 60CC of the Family Law Act 1975 (Cth).
As I have just said, there is no doubt that the mother loves the children and that the younger children in particular, still love her and wish to maintain a relationship with her. If this could be done safely, that would be in their best interests. However, the need to protect the children from physical or psychological harm and them being exposed to abuse or family violence is paramount (s 60CC(2A)). In light of the unchallenged evidence of the Single Expert, as supported by the evidence of the father and the five children, this cannot be safely done unless the mother’s time is limited and supervised. Such time would go some way to meeting the wishes of X and Y that they would like to see their mother.
It follows from this, that the orders that the mother seeks cannot be made. For the children to live primarily with her, it would expose them to an unacceptable risk of both physical and psychological harm. Further, as the Single Expert points out, the mother’s mental illness means that she lacks the capacity to adequately parent the children.
Family violence
The last matter that needs to be addressed is family violence.
The mother alleged that throughout the entire relationship the father was psychologically abusive to her, denigrating her constantly. She also alleges that he was physically violent, sexually assaulting her nearly every night with “unwanted sexual poking and prodding” as she put it (mother’s affidavit filed 2 April 2024, paragraph 78). Indeed, a fair reading of the mother’s affidavit as a whole suggests that the father made unrelenting, almost daily sexual advances towards her, which she resisted or gave in if that was the easier course. The mother also alleges that the father was physically violent on a number of occasions, including once when he “boxer punched” her on the arm leaving a bruise (mother’s affidavit filed 2 April 2024, paragraph 75). In his affidavit, the father candidly admitted that he did so, setting out that this incident has occurred after the mother had thrown coffee at him and he had felt something hard hit him in the face (father’s affidavit filed 1 March 2024, paragraph 66(b)).
The father in turn also alleges that the mother was physically violent towards him as set out in paragraph 66 of his affidavit. Commonly, he said, the mother would approach while pointing a knife or scissors at him.
In his oral evidence, the father denied that he was sexually aggressive and said that he only ever sought to initiate sexual activity rarely, and stopped if the mother was not interested.
I found the mother’s evidence as set out in her affidavit to be rather florid, which was confirmed by some of the submissions that she ultimately made. I have difficulty accepting parts of her evidence as I have identified they seemed improbable to me and perhaps most likely the result of her psychological delusion. I am therefore inclined to accept the father’s evidence on these matters. However, even if that were not so, and the violence was as the mother described it, so that the cause of her present psychological condition is that of trauma caused during the relationship, that would not change the outcome of the proceedings. This is because the aim of parenting proceedings is not to reward or punish parents for their past behaviour, but to make orders that are in the best interests of the children.
The mother does not identify any violence or psychological abuse directed by the father towards the children, although some of the things she alleges that he has said in front of them would not indicate good parenting. The evidence would remain, however, that the mother has a psychological disorder for whatever reason which ultimately presents her as a risk to the wellbeing of the children. There is no evidence that the father poses such a risk.
Disposition
There is no utility in discussing the remaining s 60CC considerations because even if each was overwhelmingly in favour of the mother, that would not overcome the risk of harm posed by her to the children.
It follows that the orders that should be made are those set out by the Independent Children’s Lawyer. The father sought some variations to those orders, but in the end did not press most of them.
COSTS
As the Independent Children’s Lawyer is obliged to do, an application was made that each of the parents pay one half of the costs.
When pressed, counsel for the Independent Children’s Lawyer very properly said that she did not intend to make any submissions contrary to the position that such an order might cause hardship, and it follows that the order will not be made.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 21 May 2024
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