Sarraff and Sarraff

[2009] FamCA 799

FAMILY COURT OF AUSTRALIA

SARRAFF & SARRAFF [2009] FamCA 799

FAMILY LAW – CHILDREN – With whom a child spends time – Time with Father – Alienation – Introduction of Mother’s partner – Father dealing with reaction to breakdown – Agreed to limited time

APPLICANT: Ms Sarraff

RESPONDENT: Mr Sarraff

INDEPENDENT CHILDREN’S LAWYER: Mark Bucknall

FILE NUMBER: BRC 13858 of 2007

DATE DELIVERED: 6 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 4, 5 & 6 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Gill & Lane

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Foley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Bucknall Family Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That all previous orders be discharged.

2. That the children, B born … April 1997 and M born …June 1999 (hereafter referred to as “the children”), live with the Mother.

3. That neither parent denigrate, abuse or berate the other parent in the presence or within the hearing of the children and each parent shall actively encourage and promote a positive relationship between the children and the other parent.

4. a.           That subject to the Father complying with the Code of Conduct, the Father be at liberty to attend the children’s soccer games.

   b. That subject to any school directions, the father be at liberty to attend school special events.

5. That the Mother have sole parental responsibility for the children provided however that the Mother is to keep the Father fully informed of the following:

   a.         Children’s education;

   b.         Children’s health;

   c.         Any change to the children’s living arrangements.

6. That the children are to spend supervised time with their Father at all such reasonable times as may be agreed between the parties, but failing agreement as follows:

   a.Each weekend on a Saturday afternoon for up to 3 hours at the E Contact Centre, with the costs of the Contact Centre to be shared equally between the parties.

7. That the Father is at liberty to telephone the children each Tuesday and Thursday between 6pm - 6.30pm on the Mother’s mobile telephone number.

IT IS FURTHER ORDERED

1. That pursuant to s65L of the Family Law Act 1975 (“the Act”), the Family Consultant, Mr P, is to remain in this matter with a primary focus of facilitating the following:

   a.A meeting or meetings with the children with a view to explaining the court outcome and future parenting provisions to them;

   a.Counselling of the children with both their parents with a view to addressing all concerns as identified in the reports of Mr P in order to further a meaningful relationship between the children and their parents and further a co-operative relationship between the parents;

   b.A discussion with the children in relation to the re-introduction of the children to their Mother’s partner, Mr A, with a particular view to addressing and alleviating any concerns expressed by the children.

2. a.        That the Family Consultant, Independent Children’s Lawyer and the parties are each at liberty to bring this matter back before the Court upon the giving of 7 days notice.

   b.That all intervention as prescribed at Orders 8 a.-c. above is reportable in accordance with s65L of the Act.

3. That each of the parents attend upon reportable counselling as recommended by the Family Consultant.

4. That the Independent Children’s Lawyer provide the E Contact Centre with copies of both reports of the Family Consultant and a copy of these orders.

5. That the Family Consultant is hereby authorised to contact the E Contact Centre at his discretion in order to obtain any and all information from the Centre in relation to all matters concerning this family, such information to be reportable.

6. That the Family Consultant provide an updated report for the further hearing.

7. That the matter be listed for mention and review at 10.00 am on Friday 11^th December 2009.

8. That on or before 1 December 2009, each of the parties file a brief affidavit limited to their observations of how matters have progressed over the intervening period.

IT IS FURTHER DIRECTED IN RELATION TO PROPERTY

1. That within 28 days, the Husband is to make full disclosure of the following to the Wife:

   a.Copies of all taxation assessments and returns from 2006 to present;

   b.Copies of all bank statements from 2006 to present for any account held in the Husband’s name or jointly with other(s) on his behalf;

   c.Copies of all Superannuation entitlements statements from 2006 to present;

   d.Copies of all home mortgage statements for the period January 2008 to the present date;

   e.Particulars and copies of the latest registration renewal statements for all vehicles owned by the Husband and/or the Husband’s business;

   f.Full particulars of any tax liability of the Husband including how the liability arose;

   g.Full particulars of all and any of the husband’s personal debts and copies of all statements and/or documents with respect to the same;

   h.Full particulars of the Husband’s business debts including particulars of any claims against the business and copies of any documents/statements of claim with respect to the same;

   i.Full particulars of all assets of the Husband and the Husband’s business;

   j.Copies of all profit and loss and BAS Statements in relation to the Husband’s business from 2006 to present.

17.That within 28 days, the Wife is to make full disclosure of the following to the Husband:

a.Copies of all of the Wife’s bank account statements for the last 12 months;

b.Copies of all of the Wife’s credit card statements for the last 12 months;

c.Full disclosure of all assets, shares and financial interests held by the Wife;

d.Copies of the Wife’s Notices of Assessment and Taxation Returns from 2006 to present.

18.That the parties obtain a valuation of the Husband’s business. In order to facilitate this, the parties are to agree on a Valuer within 28 days using the following method:

a.Within 14 days the Wife shall propose, in writing, a panel of three Valuers to the Husband;

b.Within a further 7 days of receipt of the Wife’s proposed panel of Valuers, the Husband shall nominate one Valuer from that list and shall notify the Wife’s legal representative, failing which the Wife shall nominate the Valuer;

c.The parties shall share equally in the cost of the valuation;

d.The Wife shall prepare and the Husband shall sign a joint letter of instruction to the Valuer to value the said Business;

e.The Husband shall provide to the Valuer any documents in the Husband’s possession or control, which the Valuer requires in order to conduct the said valuation;

f.Both parties are to comply with the Valuer and are to use their best endeavours to ensure that the Valuer is afforded every courtesy in order to complete his/her task.

1. a.       That the Wife file any further affidavit of evidence-in-chief on or before 1 November 2009.

   b.That the Wife incorporate in that affidavit reference to any previous affidavits intended to be relied upon, including an identification of those paragraphs of such affidavits intended to be relied upon in the property proceedings.

   c.That the Wife include in the said affidavit particulars of the nature of the Wife’s claim in relation to the property proceedings, including details of any claims of negative contribution or add-backs.

2. That the Husband file any affidavit in reply by 22 November 2009.

IT IS FURTHER ORDERED

1. That the Father’s Contravention Applications filed on 22 July 2009 and 28 July 2009 be dismissed.

2. That pursuant to s65DA(2) and s 62B, the particulars of the obligation 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 these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Sarraff & Sarraff is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13858 of 2007

MS SARRAFF

Applicant

And

MR SARRAFF

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX TEMPORE

1. There have been some very significant and very positive developments in this case in that, following some comments made from the Bench yesterday, the parties and the Independent Children’s Lawyer have been engaged in the exchange and consideration of proposals which arose, I suspect, largely as a result of some intimations made by me yesterday morning. 

2. As the case was originally presented, there were starkly opposed applications, wherein the father was seeking to have the two children, B and M, aged 12 and 10 respectively, reside with him and have contact with their mother.  The mother was seeking an order that the children should reside with her and have supervised contact only with the father.

3. I refer to my remarks yesterday and, in particular, my observations at that time about the state of the evidence and the realities facing the father.  It is apparent from the competing proposals put forward today that the father has taken those comments on board and he has substantially changed his position.  He now indicates to the court that, having regard to the totality of the evidence and, in particular, the reports and evidence of Mr P, he acknowledges the need to take conservative steps to renew his relationship with his sons on a healthy foundation.  Further, inherent in what he has agreed to and in some of the remarks he has made over the course of the last two days, is acknowledgement that he needs to earn the trust of his former partner and to demonstrate to her and to the court that he intends to ensure that he does everything possible to make his relationship with his boys more positive, more beneficial and devoid of any of the negative influences to which they have apparently been exposed at times in the past.

4. The focus of the last two days has, necessarily, been upon any failings of the father.  I have yet to encounter a case in 18 years where everything that has gone wrong is the fault of one person only.  And whilst the focus has been upon the father, he needs to be assured that that does not mean that this court is holding the father responsible entirely for the presentation of these boys at this time.  Their presentation is very worrying, but no doubt many things have contributed to that presentation, starting essentially with the fact that their parents separated.  No doubt, merely dealing with the separation of their two parents at a very delicate stage of these children’s growth and development is a factor which has contributed to their sadness and confusion from time to time.

5. At the same time, it is not my intention to gloss over the concerns about aspects of the father’s parenting which were canvassed thoroughly yesterday, in particular, relating to the boys’ capacity to engage in destructive, negative behaviour, particularly directed towards their mother in the things they have done and said on many occasions in the past.  An essential matter to be addressed is the issue relating to the children’s emotional well-being. 

6. At times, the father appears to struggle to understand the significance of these issues and, from time to time, protests that he has done nothing wrong.  At other times, however, he frankly admits to mistakes. 

7. I accept that everyone in this case has a significant journey to undertake.  I do not expect that these children are going to change their attitude overnight because, regrettably, their destructive attitude in relation to their mother has now been a part of their lives for the entire period since separation.  The father has carried with him attitudes which are as a result of his understandable distress about the loss of his marriage and the loss of his family.  Unfortunately, that distress has sometimes been expressed in ways which were counter-productive to his children’s healthy development and, according to Mr P and others, is likely to have contributed to their troubled presentation.

8. However, I am encouraged that the father has taken some very significant steps in the course of the last two days in the right direction.  I simply reinforce what Mr P has said, and that is, that there are going to be many challenges ahead of the father in the weeks and months to come.  These boys are going to continue to make negative reports about their mother for some time to come and it is up to the father to handle that properly.  I say to the father that, whilst I acknowledge the task is not going to be an easy one, a heavy onus rests upon him to ensure that there is an improvement upon the circumstances that have prevailed to this time.  What happens on December 11 will be very much dependent upon how the father manages the next three or four months.

9. The husband described the next three months as being on trial and that is not an unfair description of what is ahead of him.  The degree of success for the father is largely in his own hands.  Much more importantly, the welfare of his children is, in large part, in his hands over the next three or four months. 

10. The father is going to have to examine and re-examine and re-examine his conduct, his attitude and how he deals with his boys.  He is going to have to review how he deals with the boys’ mother, and I am not talking in a direct sense.  He has to build his trust with these boys and, through the boys, he has to develop some trust and respect from the mother.  The father must now earn the trust of the mother and the trust of the court.

11. I hope that this is the first step in an entirely different direction where some level of mutual respect, some ability to co-operate and some ability to communicate emerges for the sake of these boys. 

12. This is the parents’ first time dealing with a divorce and the impact of the divorce upon their children.  All I can say to each of them is that I do this every day of my life and I have never encountered a 12 year old and a 10 year old talking about suicide.  The parents need to appreciate the task that is ahead of both of them. 

13. It is clear from Mr P that the boys’ best chance of emerging from their ordeal is if they have two supportive parents and if they feel free to love both of their parents.  If they can draw upon the strengths and the things that each of their parents have to offer, they may come out of this and reach their full potential, but it is going to require a concerted effort by each of the parties.  Otherwise, the sad reality is that, somewhere down the path, the parents may be dealing with very grave issues about their sons and how they are coping with life as they move into adolescence.

14. I recommend to each of the parties that any time they become uncertain about how they might manage these difficult issues, they revisit the report of Mr P, and re-read it and re-read it carefully. I encourage them to enlist the support of Mr P through the section 65L order, and I encourage them to use the communication book constructively and wisely - not excessively, but use it appropriately as the first avenue of forcing ajar the door that the mother says she is embarrassed to see closed at this point. She rightly says it is embarrassing to see two grown-ups unable to communicate, even about their own children. Hopefully, the parties can move quickly beyond a communication book and develop an ability to pick up the phone and talk to one another. I appreciate that all of these matters may take some time.

15. Having made those general observations, I then turn to the specifics of the proposals of each of the parties.  There is agreement between the parties and support from the Independent Children’s Lawyer in the bulk of the substantive issues between the parties.  They have been unable to reach agreement about some incidental issues, which therefore calls for a determination by me, and I turn to those matters. 

16. I take the view that it is appropriate that all previous orders and undertakings be discharged, although I will return to the issue of Mr A’s involvement as a separate issue. 

17. The first matter in issue of significance is the question of sole parental responsibility.  The mother seeks an interim order for sole parental responsibility.  The father opposes that order, and seeks an order for shared parental responsibility, borne of a concern that a sole parental responsibility order has the effect of excluding him from involvement in important decisions in the boys’ welfare. 

18. I record that it should remain the objective of each of the parties to leave this exercise with an order or an agreement for joint parental responsibility.  However, consistent with some other determinations and orders I am going to make, I take the view that we are at the start of a process.  It needs to be acknowledged that this starting point emerges from what has been repeatedly referred to as a train wreck.  It starts from a situation of raw conflict which prevailed for a very long period of time and which has had an adverse impact upon each of the parties.

19. In those circumstances, I want to put in place, for a short period of time, a set of arrangements which reduces the prospect for conflict and which increases the prospect of stability and certainty for these children.  As a temporary arrangement, I take the view that the order which best meets those objectives is an order which provides certainty and vests with one parent the responsibility to make decisions for the time being.  

20. As I say, it would be unrealistic to expect that overnight the parties would have the respect for one another and the ability to communicate and co-operate.  They are working towards that objective.  In the meantime, requiring parties to confer, consult and discuss may not only be unrealistic, it may be counter-productive. 

21. I note from the mother’s proposals that she acknowledges the right of the father to be kept informed about issues relating to the children’s education, health and change in living arrangements.  In my view, that acknowledgement represents an appropriate starting point.  For those reasons, I propose to make that order sought by the mother, but indicate clearly that parental responsibility will be one of the matters very much in focus for review and reconsideration on 11 December.   

22. The next matter in issue relates to the frequency of the father’s visits.  The father seeks at least every Saturday.  His preference to have more time than that is dictated to by the E contact centre.  I am informed that the E contact centre has up to three hours available on Saturdays only.  The issue between the parties becomes one of whether it should be each Saturday or each alternate Saturday. 

23. It is submitted on behalf of the mother that the preferred option is on alternate Saturdays.  It is suggested that, under the current regime of school, soccer and contact centres, the mother’s capacity to spend quality time with the children is very limited.  A reference is also made to the cost of regular contact at the contact centre. 

24. In my view, the decision on this matter must remain child-focused.  In this case, the evidence indicates that the children have great affection for their father and want to spend time with him.  Under the Family Law Act, I am obliged to give proper consideration to the need to put in place orders which preserve and foster meaningful relationships between children and each of their parents. 

25. Notwithstanding the hectic life surrounding the mother as a worker and these young, active children, I have no doubt that, in the balance of any one week, the mother is going to have the opportunity to spend more than enough quality time with the children.  She is the parent who is going to have exclusive access to those important times before and after school, and bedtime and the like, when parents have an opportunity to engage with their children in a quality environment.  She is going to have the bulk of all of the weekends.

1. On the other hand, I cannot be satisfied that two hours a fortnight provides these children with the opportunity to properly address their needs in their relationship with their father.  I am satisfied that, for the boys’ sake, it is preferable that they see their father each week.  Two weeks is too long to go without seeing one of your parents if that is avoidable.  Further, given that the time is limited to hours and the quality of the father’s time is, in fact, diminished by virtue of the need to have the contact at the contact centre at this time, in my view, all the factors point overwhelmingly to the need to have weekly contact.  And, in my view, it should be three hours if the contact centre has that time available. 

2. Finally, on that point, I should have mentioned that the time for the boys and the father to have any contact, direct or indirect, during the soccer season is about to finish.  

3. Having regard to the submissions made on behalf of the mother, I am satisfied that the order relating to the telephone to be utilised is the appropriate one, that is, that it be to the mother’s telephone number. 

4. I note that the mother is agreeable to the father’s proposal that he be at liberty to attend school special events.  Without making any judgment on the past history, the father needs to appreciate that, at the end of the day, the ultimate decision on such matters is for the school, in the same way as I cannot direct a soccer club in terms of who the club will, or will not receive onto its premises. 

5. I again invite the father to examine the past and, if necessary, modify any behaviour which might place at risk his capacity to attend soccer games and special school events.  And, of course, it is incumbent upon the mother not to take any unnecessary steps which might have the effect of interfering with the father’s capacity to attend those events.

6. Finally, I turn to what has remained the most contentious issue between the parties and that is, whether the boys should be introduced to Mr A between now and 11 December.  The mother seeks that opportunity.  The Independent Children’s Lawyer supports that prospect and Mr P took the view that a continuation of any restraint upon the mother did not appear to be justified, in all the circumstances.

7. The father says he wants the boys to be in a position to be free to embrace the new regime without the complication of dealing with the introduction of Mr A into their lives at this time. 

8. I accept that the mother should be free to pursue her relationship with Mr A and I accept that there have been limitations imposed upon her in the past 18 months, and it is not the role of this court to dictate to adults who they should and should not have a relationship with.  I accept that the Independent Children’s Lawyer has identified relevant considerations, including an assessment of the risk of physical harm, the capacity of Mr A to perceive stress and any fear on the part of the children.  I add a fourth consideration to that, and that is my assessment of the mother’s capacity to be protective of her children. 

9. I am satisfied on the totality of the evidence that Mr A does not represent a risk to these children in terms of any physical harm.  I accept that he has the capacity to perceive any stress on the part of these children and respond to it.  I find that the mother is entirely protective of her children and would put their safety and welfare ahead of her relationship with Mr A, should that be necessary.

10. However, it is on the issue of fear on the part of the children that I disagree with the submissions made on behalf of the mother and the Independent Children’s Lawyer and take a different point of view to that pressed by Mr P.  Mr P has identified that these children are fearful of Mr A and that they have, for example, on the mother’s own admissions, suffered nightmares in relation to issues such as the stabbing of a knife. 

11. I accept that the boys’ reaction to the now infamous wedgie incident has become entirely disproportionate.  In Mr P’s own report, he refers to the incident and the boys’ statements about it and there is other evidence about it emerging from a report of Ms B.  What Mr P speculates about is whether the boys’ reaction is limited to their own experience, or whether it has been exacerbated by indoctrination on the part of the father.

12. Of course, all of those matters are speculation but, in this case, for reasons yet to be properly evaluated, the presentation of these boys is at the extreme level.  They have talked about self-harm, they have talked about suicide, and Mr P has said the court simply cannot take such matters lightly.  Whatever be the final determinations, I have little doubt that the father’s attitude to Mr A in the past is, at the very least, a contributing factor to the boys’ apprehensions and their presentation, their fears of Mr A and their overall state of distress and emotional fragility.

13. As I have indicated in another context, people need to be realistic.  The boys are not going to magically improve overnight and not have any of these problems.  As well-intentioned as I hope the father is, his attitude is not going to change overnight.  The progress of Mr A’s relationship with the mother is something that the mother, understandably, wishes to pursue without limitations.  Whilst that is entirely reasonable and understandable, in the same way that the father now has to put his ambitions in terms of his relationship with his sons on hold and accept a very limited contact regime, on the other side of the coin, I think it is appropriate to ask the mother not to put her relationship on hold because she is entirely at liberty to pursue her relationship with Mr A, but that she put her ambitions to have Mr A introduced to the boys on hold for a further short period.  I want the gains that have been made over the last two days consolidated.  I want to put in place an arrangement that has as much support as possible from both sides and is not going to be resented to any significant extent which may, in turn, undermine the prospects of moving forward positively.

14. I have grave reservations about any merits in the concerns expressed by the father, but I acknowledge the reality of them.  They have been longstanding, they have been intensely held and I want to give the father the grace of three or four months where he is going to be modifying his attitude for the benefit of his children without the irritation or distraction of the prospect of the children spending time with Mr A.  In my view, in the overall scheme of things, putting the children’s reintroduction to Mr A on hold for four months is a small price to pay if the advantage that emerges from it is that this starting point is given the best prospects of success. 

15. The father says to me that he has got to come to grips with the fact that the relationship is over, that Mr A is going to be part of his life.  He needs to come to grips with the fact that the almost inevitable outcome is that the mother should be free to pursue her relationship with Mr A, and that both Mr A and the two boys are going to be such an essential part of her life, if the relationship persists, that sooner or later this introduction is going to have to take place, and it is likely to be after the December hearing.

16. I have also been persuaded that I should adopt a conservative approach because of the extent of the boys’ presentation at this stage and the uncertain basis for their fears of Mr A.  I want to give Mr P the opportunity to work with these boys before they are introduced to Mr A.  Paragraph 7(c) of the orders is not with a view of facilitating the reintroduction of the children, but with a view of discussing an introduction. I am quite content that Mr P can, and indeed should, canvass that issue with the boys and talk to them and address any of their concerns and fears over this period of supervised contact, and I am going to ask Mr P to provide an updated report to the parties and the court for the purposes of the proceedings on 11 December 2009.

17. I do take up the offer to order that the trial be adjourned to 11 December.

18. I would add a further order - number 4 - that the wife file any further affidavit of evidence-in-chief on or before 1 November.

19. The remaining contravention application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: