Sedak and Sedak

[2018] FamCA 881

FAMILY COURT OF AUSTRALIA

SEDAK & SEDAK [2018] FamCA 881

FAMILY LAW – CHILDREN – Interim – Where the mother contends the children are at risk of sexual harm in the father’s care – Where it seems probable the father accessed child exploitive material and incest images on his computer – Where the father acknowledges the mother’s concerns on the available evidence but does not concede he poses a risk of harm to the children – Where the parties and Independent Children’s Lawyer agreed the supervision of the time spent by the children with the father is necessary on an interim basis – Where the dispute devolved to the identity of the supervisor – Where the children have meaningful relationships with the mother and father – Ordered the parties have equal shared parental responsibility for the children – Ordered the children live with the mother and spend time with the father on two or three occasions each week – Ordered the paternal grandparents supervise the children whilst in the father’s care – Ordered the eldest child attend counselling – Parties restrained from the destruction or concealment of any electronic devices.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Banks & Banks (2015) FamCAFC 36
Goode & Goode (2006) FLC 93-286
Marriage of B and B (1993) FLC 92-357
SCVG & KLD (2014) FLC 93-582

APPLICANT: Ms Sedak

RESPONDENT: Mr Sedak

INDEPENDENT CHILDREN’S LAWYER: Mr Blumberg

FILE NUMBER: SYC 8550 of 2016

DATE DELIVERED: 16 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 16 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berry

SOLICITOR FOR THE APPLICANT: Hilliard & Berry Solicitors

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: M & K Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Blumberg Family Lawyers

Orders

1. By consent, the Application – Contravention filed by the father on 19 December 2017 is dismissed with no order as to costs.

1. All formal parenting orders in respect of the following children are discharged:

(a)     X born … 2010;

(b)    Y born … 2012; and

(c)    Z born … 2013.

1. The mother and father shall have equal shared parental responsibility for the children.

1. The children shall live with the mother.

1. The parties shall take up all reasonable steps to ensure that the children spend time with the father as follows:

(a)Each Sunday from 9.00 am to 5.00 pm; and

(b)Each Tuesday from 4.00 pm to 7.00 pm.

1. The parties shall take all reasonable steps to ensure that the eldest child additionally spends time with the father each Thursday from the conclusion of school (or 4.00 pm if the child is not attending school) until 5.30 pm.

1. For the purposes of Orders 5 and 6, the time spent by the children with the father must be supervised by either the paternal grandfather or paternal grandmother.

1. For the purposes of implementing Orders 5 and 6, the parties shall ensure the children’s collection from and return to:

(a)The eldest child’s school (in the event the collection point is that school); or otherwise

(b)The main entrance at the B Shopping Centre.

1. The parties must cause the eldest child to attend counselling sessions nominated by the Independent Children’s Lawyer at the times and places designated by the councillor, the cost of which shall be borne equally by the parties.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations of these Orders create, the particulars of the consequences that may follow contravention of these orders and details of assistance to comply with these Orders are set out in the attached Fact Sheet which forms part of these Orders.

1. The parties are restrained by injunction from the destruction or concealment of any electronic devices including computers, laptops, tablets and mobile phones in their possession or control.

1. Notwithstanding any other order, the children spend time with each of the parties as follows:

   (a)In 2017 and each odd numbered year thereafter, with the mother from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day and the father on 12.00 pm on Christmas Day until 12.00 pm Boxing Day; and

   (b)In 2018 and each even numbered year thereafter, with the father from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day and with the mother from 12.00 pm on Christmas Day until 12.00 pm on Boxing Day.

2. On a without admissions and without prejudice basis, the father attend upon Dr C on 22 November 2017 and thereafter as recommended by Dr C and the father’s solicitor will notify the other parties of such attendance.

1. Both parties be restrained from accessing any site or stored material which relates to pornography including bestiality on any computer while the children or any of them are in their care.

2. Each party:

   (a)Ensure the children do not ride 4 wheeler motor bikes without helmets and other protective wear;

   (b)Ensure that the children do not play video games with violent or other inappropriate themes; and

   (c)Not permit the children to use or be around people using weapons unless there is a responsible adult with a firearms licence present and supervising at all times who is ensuring safety procedures are being implemented.

3. Each party:

   (a)Inform the other party as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by any of the children, that is, if they have a fever or illness and need to see a doctor, or they require hospitalisation;

   (b)Keep the other party informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;

   (c)Keep the other party informed of the names and addresses of any treating medical or other allied health practitioner who treats any of the children and authorise such practitioners to provide the other party with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and

   (d)This order authorises any treating medical practitioner to release the details of the children’s medical condition and/or injury to the other parent.

4. Each party agrees to communicate with each other in a polite and respectful manner, noting that conflict amongst the parents will have a negative impact on the children.

1. The parties agree to communicate by telephone, text or email, and to ensure that the children are not used as a messenger.

2. Each of the parties will be at liberty to attend and engage in any sporting, after school, recreation, educational or other activity in which the children are involved. 

1. Both parties are restrained from denigrating the other party, the other party’s family and friends, to or in the presence or hearing of the children and shall use their best endeavours to ensure no other person does so.

1. Until further Order of the Court each of the Mother and the Father, namely MS SEDAK born … 1985 and MR SEDAK born … 1983, their servants and, or agents are restrained from removing, or attempting to remove, or causing or permitting the removal, of the children X, born … 2010; Y, born … 2012; and/or Z, born … 2013 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintaining the children’s names on the Watchlist until the Court orders their removal.

1. Each of the mother and the father be restrained from applying for or obtaining a passport in the names of the children, or any of them, or applying for the children, or any of them, to travel on a passport without a prior order of this Honourable Court.

1. Save as to costs otherwise:

(a)The Application in a Case filed on 8 December 2017 is dismissed.

(b)The Response to an Application in a Case filed on 17 December 2017 is dismissed.

(c)The application for the orders set out in exhibit F1 is dismissed.

(d)The application for the orders set out in exhibit ICL1 is dismissed.

(e)Any and all other outstanding applications for interim relief are dismissed.

1. By consent, the time for the parties’ compliance with r 15.64B of the Family Law Rules is extended Friday 16 March 2018.

1. The mother’s oral application for costs against the father is dismissed.

1. The father’s oral application for costs against the mother is dismissed.

1. The parties do not require the publication of the reasons for the Orders 25 and 26.

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 Sadek & Sadek 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 8550 of 2016

Ms Sedak

Applicant

And

Mr Sedak

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern a dispute between the applicant mother and respondent father over their three children under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The children are presently seven, five and four years of age. The litigation commenced in December 2016 before the Federal Circuit Court and the parties have already had several interlocutory skirmishes. The Federal Circuit Court made interim orders in December 2016 and November 2017, but both parties and the Independent Children’s Lawyer want those orders urgently reviewed because of a recent dispute over the children’s sexual safety in the father’s care.

3. A single expert recently reported that the father had probably used his computer to search for and view images and videos described as depicting “child exploitative material” and “incest”. The mother was previously aware of the father’s interest in bestiality, but that did not cause her to contend the children needed supervision in his care. Indeed, the father said she viewed bestiality photographs and videos with him in the past. The mother contended the father’s interest in child exploitative material and incest was, however, quite different and caused her to worry about the risk of harm the father posed to the children by his subjection or exposure of them to sexual abuse.

4. While not conceding he posed any risk, the father acknowledged the viability of the mother’s concerns. He conceded that, for the time being, the time the children spend with him should be supervised to allay her subjective fear or, indeed, to allay any objective concern. 

5. The parties and Independent Children’s Lawyer agreed the orders made in November 2017 required amendment by the imposition of a requirement for the supervision of the children when in the father’s care. The dispute devolved to the identity of the supervisors. The mother contended it must be provided by a professional commercial supervisor (“Connecting Families”), whereas the father and Independent Children’s Lawyer maintain that supervision by paternal family members would suffice.

Applications and Evidence

1. The mother moved on her Amended Application in a Case filed on 8 December 2017, in support of which she relied upon her affidavit filed on 7 December 2017. 

2. The father abandoned the orders in his Response to an Application in a Case filed on 19 December 2017 and instead sought the orders in the minute of orders he tendered (Exhibit F1). 

3. In support of his proposal, the father relied upon: 

   (a)his affidavit filed on 19 December 2017; 

   (b)his affidavit filed on 15 February 2018; 

   (c)the affidavit of the paternal grandfather filed on 15 February 2018; 

   (d)the affidavit of the paternal grandmother filed on 15 February 2018; and

   (e)the affidavit of the paternal uncle filed on 15 February 2018.

4. The Independent Children’s Lawyer proposed the orders set out in the minute of orders he tendered (Exhibit ICL1). 

5. The parties and the Independent Children’s Lawyer also relied upon: 

   (a)the single expert reports of the IT specialist (Mr F) dated 5 September 2017 (Exhibit ICL5) and 22 January 2018 (Exhibit ICL6); and

   (b)the single expert reports of the consultant psychiatrist (Dr E) dated 29 August 2017 (Exhibit ICL2), 19 October 2017 (Exhibit ICL3) and 9 February 2018 (Exhibit ICL4).

Legal Principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a parenting order is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D) within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (S 60cc).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be either rendered inapplicable or rebutted. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents or, alternatively, primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, but the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

4. It will be remembered that this dispute is an interlocutory one. The procedure for conducting an interim hearing has been authoritatively established by the Full Court.  In Goode & Goode (2006) FLC 93-286 (“Goode & Goode”), the Full Court said at [68]:

   The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

5. Of course, that does not mean contentious facts must be disregarded. Particularly in parenting proceedings, the Court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the determination of orders which meet the children’s best interests. Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue. In Banks & Banks (2015) FamCAFC 36 at [47]-[50], the Full Court noted that a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at final trial. Not every s 60CC factor need be discussed in that process. The reasons need only address the contentious factual and legal matters outstanding between the parties (SCVG & KLD (2014) FLC 93-582).

Children’s best interests

Section 60CC(2)(a)

1. It was conceded by all that the children all have meaningful relationships with both parents, from which they derive benefit. So much is evident from the orders made in November 2017, which provided for the children to live with the mother and to spend substantial and significant time with the father. 

2. Self-evidently, such valuable relationships should only be curtailed to the extent necessary to protect the children from the risk of harm, the evidence of which must be analysed under s 60CC(2)(b).

Section 60CC(2)(b)

1. The mother contended the children were at risk of harm by reason of the chance of their subjection or exposure to sexual exploitation by the father. However, she thought the risk could be contained by professional supervision.

2. The father was right to concede the existence of such risk on the evidence presently available. It seems probable he accessed child exploitative material and incest images on his computer, which conduct implies an interest in the sexuality of children and sexual relations between adults and children. His apparent interest in viewing such material does not necessarily mean his fantasies will transform into reality, but the risk is patent.

3. The risk is compounded by his dishonesty about it. He deposed:

   I absolutely deny viewing or otherwise accessing any material that is CEM (child exploitative material) or incest.

4. In fact, the father admitted such use to his parents.

5. The paternal grandfather deposed:

   [The father] has admitted to me that he has accessed material which forms the basis of the current concerns.

6. The paternal grandmother deposed:

   [The father] has admitted to me that he has accessed fantasy material that is being labelled as child exploitative material and incest material.

7. Dr E also notes the father admitted to his psychiatrist, Dr C, that he had browsed such material, once that was made clear in Mr F’s second report. Dr C reported to Dr E that the father told him incest was his secondary interest and bestiality was his primary interest. 

8. The father properly acknowledged some supervision should be imposed, but asserted the paternal grandparents and paternal uncle could and should perform that role. Ordinarily, family members are not generally desirable as supervisors (see Marriage of B and B (1993) FLC 92-357 at pages 79,780 – 79,781), but that guideline does not hold true in this case. The paternal grandparents do not dispute his need for supervision. In the knowledge the father conceded to them he had viewed child exploitative material and incest material, they both swore affidavits confirming their willingness to properly supervise the children with the father. The mother’s fear they might disregard the danger or, worse still, sit idly by while the father abuses the children or forces them to watch pornographic images, was unduly histrionic.

9. This was not a case where the proposed supervisors disavow the risk which the supervision is designed to eradicate. The father admitted his concerning behaviour. The paternal grandparents probably accept his admission as truthful. There is no proper basis to infer the paternal grandparents would deliberately, recklessly or negligently abandon their responsibilities as supervisors.

10. The mother’s proposal for professional supervision suffered from several vices.  First, it is costly (Exhibit M1) and both parties contended they could not afford it. There was no evidence before the court to permit an inference they could afford it and no reason to reject their evidence as inherently improbable. Consequently, orders requiring professional supervision would be tantamount to severance of the children’s relationship with the father.

1. Secondly, Dr E reported:

   It would be optimal in terms of providing the children with a more authentic experience of time with their father, if the supervision could be provided by friends or family. Generally, this enables the children’s time with the parent to be of longer duration, albeit, in my opinion, overnight being inappropriate at this stage, and it also enables a broader range of familiar activities.

2. The proposals of the father and Independent Children’s Lawyer were designed to correlate with that recommendation.

3. I am satisfied the use of the paternal grandparents as supervisors will satisfactorily attenuate the risk of harm to the children and the orders will so provide. 

4. The orders do not extend to the paternal uncle. The father only admitted his sexualised behaviour to his parents, not his brother. The paternal uncle does not, therefore, have the first-hand knowledge of the need for and advisability of supervision, as the paternal grandparents do. Additionally, the children’s supervision should not risk diffusion of responsibility among too many supervisors.

Section 66CC(3)

1. No factors under s 60CC(3) were separately addressed by the parties or Independent Children’s Lawyer as being determinative of the issue at hand. However, the parties seemingly live in sufficient proximity to enable the children to spend time with the father frequently. Exchanges of the children between them will not be impeded by undue expense or considerations of impracticability.

Conclusions and Orders

1. As I earlier indicated, the Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility (s 61DA(1)). The issue was not the subject of any submission by either party or the Independent Children’s Lawyer but, as the Full Court pointed out in Goode & Goode, the application of that presumption is the starting point whenever an application for parenting orders is pending before the Court. 

2. No submission was made to the Court that the presumption of equal shared parental responsibility was either rendered inapplicable (s 61DA(2)) or rebutted as an order not in the children’s best interests (s 61DA(4)). In the circumstances, I see no impediment to the operation of the presumption of equal shared parental responsibility. Such a conclusion seems to correlate with the parties’ impressions of their capacity to make decisions about the children’s needs. The orders made by the Federal Circuit Court in November 2017 provided for them to have equal shared parental responsibility for the children and no submission was made to the contrary today. 

3. Given an order for equal shared parental responsibility will be made, s 65DAA is engaged. The Act requires that I first consider the children living for equal time with the parties. It was not contended by either party or the Independent Children’s Lawyer that orders for “equal time” were desirable, practicable or in the children’s best interests. I therefore turn to consider the subsidiary parenting regime, namely, the children living with one parent and spending substantial and significant time with the other. It was uncontroversial that the children should remain living with the mother and the orders will so provide.

4. The father and Independent Children’s Lawyer advocated for orders which required the children to spend time with the father at times and with a frequency which arguably meets the definition of “substantial and significant time” (s 65DAA(3)). The mother’s proposal was for orders in a much more truncated form, requiring the children to only spend time with the father once or twice a week for a couple of hours each time under professional supervision. The proposals of the father and the Independent Children’s Lawyer envisage the children spending time with the father on Sundays and Tuesday afternoons. In my view, such an order is appropriate. Orders to that effect are both reasonably practicable to implement and would meet the children’s best interests, given the level of their interaction with the father prior to the mother’s unilateral severance of their contact with him in December 2017.

5. The orders will also provide for the eldest child to spend time with the father on Thursday afternoons, principally for two reasons. First, they have apparently historically spent that time together, and second, the eldest child seems to be suffering most as a consequence of the parental separation. Again, an order to that effect is both reasonably practicable to implement and would meet the eldest child’s best interests. It would seem uncontroversial that the eldest child spent some time alone with the father on Thursday afternoons immediately before his attendance at an extracurricular activity, which he apparently has ceased to attend within the last couple of months.

6. The father’s proposal was for the children to communicate with him by telephone several times each week, but I decline to make any orders for telephone contact. The children will already spend time with him on two to three occasions each week and the frequency of that interaction is sufficient to make telephone communication unnecessary. A frequently repeated complaint during this hearing was the conflict between the parties and any attempt to abate that conflict should be taken. Having the parties telephone one another’s homes unnecessarily should be avoided. If the parties agree there should be telephone communication with the children, they are free to agree upon it, utilising their equal shared parental responsibility. 

7. The orders will make provision for changeovers to occur, when possible, at the eldest child’s school but, because the youngest child is only four years of age, that might not be suitable to all three children. For that reason, the orders contemplate exchange of the children at a neutral local venue which is accessible to both parties.

8. The parties agreed that the eldest child requires counselling, due to the emotional difficulties he is experiencing. While both parties agreed the eldest child be submitted to counselling, they could not agree upon the identity of the counsellor to provide such services. In my view, the only rational decision to resolve the dispute is to leave the decision to the Independent Children’s Lawyer. There is no evidence placed before the Court enabling me to make a judicial decision as to which of the two counsellors proposed by the parties ought be preferred. The Independent Children’s Lawyer, as his name suggests, is independent of the parties and is the only person in an impartial position well placed to make that decision.

9. The father applied for an injunction to restrain the parties from destroying or concealing their electronic devices, and the mother’s counsel confirmed such an order could be made with her consent. An order in those terms will therefore be made. 

10. The father and Independent Children’s Lawyer both sought a raft of orders concerning the procurement of further single expert evidence from both Mr F and Dr E. I decline to make orders of the sort contemplated and will leave the parties to negotiate what further expert evidence ought be procured. There are several reasons for that decision.

11. First, the issue about orders for the procurement of further single expert evidence was not even an issue for the hearing until the father and Independent Children’s Lawyer both tendered minutes of orders seeking orders to that effect as the interim hearing started. There was certainly no application for orders of that sort in either the mother’s Application in a Case or the father’s Response to the Application in a Case.

12. Second, there was no evidence adduced to address the dispute over the details of the procedural orders proposed. There was no consent offered for such orders to be made in any particular format and, as a consequence, it was impossible to make any orders by consent.

13. Third, there was an unresolved dispute between the parties about who should be responsible for the cost of such additional expert evidence and, in the absence of any evidence about the parties’ financial circumstances, such a decision was impossible. 

14. Fourth, there was apparently a suggestion that Legal Aid might be able to defray the cost of such evidence but, again, I have no evidence as to that issue before me. 

15. Lastly, Orders 17 to 27 inclusive made by the Federal Circuit Court on 24 November 2017 were made with the parties’ consent and no-one today suggested orders of that sort should not continue to apply so, accordingly, I intend to make orders that replicate those orders. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 16 February 2018.

Associate:

Date:  30 October 2018