Sokol & Royer
[2022] FedCFamC1F 534
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sokol & Royer [2022] FedCFamC1F 534
File number(s): SYC 4094 of 2010 Judgment of: SCHONELL J Date of judgment: 25 July 2022 Catchwords: FAMILY LAW – CHILDREN – Where the mother raised serious allegations against the father – Where the parties reached an agreement and thus by her agreement, the mother elected to not pursue the allegations against the father – Orders made as agreed between the parties. Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 25 July 2022 Place: Sydney Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: Sharah & Associates Solicitors and Conveyances Counsel for the Respondent: Mr Flanigan Solicitor for the Respondent: Grant & Co Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
SYC 4094 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SOKOL
ApplicantAND: MR ROYER
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
25 JULY 2022
THE COURT ORDERS THAT:
1.I make Orders 1 to 12 of the document marked Exhibit A as set out below:
Discharge of prior Orders
1. All prior parenting orders are discharged.
Sole Parental responsibility
2. The father shall have sole parental responsibility for the children [X] born [in] 2009 and [Y] born [in] 2011 (‘the children’), and:
2.1 the father shall keep the mother advised of the children’s progress including but not limited to matters of the children’s well being, health, education or extra curricular activities;
2.2 The mother shall be entitled to communicate with the father any concerns or any suggestions she wishes to make for the progress and well being of the children; and
2.3 the father shall give due regard to such matters as are raised by the mother but, in the event that no agreement is reached, then the father shall be the person to make the final determination or decision.
Live with
3. The children shall live with the father.
Spend time with
4. Subject to the next Order the children shall spend time with the mother as agreed in writing between the parents and failing agreement as determined by the father having regard to the children’s views.
5. The mother shall be permitted to communicate directly with each of the children on their mobile telephones and to give effect to this Order the father shall ensure that the mother is provided with each of the children’s current mobile phone numbers from time to time AND THE COURT NOTES THAT, without admissions, the father will not obstruct or otherwise dissuade the children from communicating with the mother.
6. The father shall ensure that the children receive any letters, cards or presents as sent by the Mother.
Changeovers
7.Changeovers shall occur as agreed between the parents, and both parents shall ensure that during changeovers:
a. Neither parent will enter the other’s home;
b. Each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
c. Each parent will conduct themselves in a child focussed manner;
d. Each parent will limit their conversation to matters that specifically pertain to immediate matters of the children passing from one parent’s care to the other;
e. Neither parent will discuss issues of any controversy between them.
Overseas travel & passport
8. Pursuant to s65Y of the Family Law Act 1975 the father be permitted to travel internationally with the child and for the purposes of this order the father shall have sole parental responsibility as to the issue of passports under s11 of the Passports Act 2005.
General orders
9. Both parents shall keep the other advised at all times of their email address and contact telephone number and shall advise the other party within 48 hours of any change to either their email address and contact telephone number.
10. Each parent shall be permitted to communicate directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
11. Without limitation to any other Order providing for communication between the parents and the children, the children may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the children communicating with the other parent by electronic means on a regular basis.
Restraints
12. Without admissions, when the children are in their respective care, each parent is restrained from:
12.1 Physically disciplining the children or permitting any other person to do so;
12.2 Questioning or interrogating the children about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the children;
12.3 Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent's extended family, or person with whom the other parent is in a relationship with, with the parent's knowledge or in their presence;
12.4 Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
12.5 Permitting the children having access to any of the documents filed in these proceedings;
12.6 Communicating any information intended for the other parent through the children; and
12.7 Causing the children to be a medium in any way between the mother and the father or between the mother and the father and any other person.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sokol & Royer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are long running parenting proceedings that initially commenced in or about 2017, with the filing of an application by the respondent father (“the father”). They relate to the parties two children, X born in 2009 and Y born in 2011.
It is clear that the parties have been litigating in this Court since at least 2017, albeit the file would appear to indicate that proceedings initially commenced in or about 2010.
The applicant mother (“the mother”) relies upon an Amended Initiating Application filed 16 December 2021 and an affidavit filed 15 July 2022.
The father relies upon a Response filed 21 Mach 2022 and an affidavit filed 11 July 2022.
There has also been prepared a Family Report by Court Child Expert Ms A dated 12 July 2022. I have also had regard for the purposes of this hearing to a single expert report prepared by Ms B on 14 August 2018.
The parties initially met in or about November 2006 and had a relationship which featured many separations, culminating in final separation sometime in or about December 2011.
The mother’s affidavit as prepared by her solicitor makes a series of broad ranging allegations against the father. Her allegations include sexual fetishes, family violence perpetrated upon her by the father including physical and sexual assaults, and verbal and psychological abuse. She also references threats by the father to kill her. She also contends that she observed the father “grope [X’s] breasts and labia and say, ‘these are mine’” (mother’s affidavit, paragraph 94). As best I can determine from the mother’s affidavit, the child would have been about 18 months old at the time. The mother also says that the father acted in a sexually inappropriate way with his sister and that his father sexually the father’s sister.
The father denies all of the mother’s allegations and he contends the mother has fabricated allegations of violence and abuse.
Following separation, the children remained in the mother’s care until about October 2014. As best I can determine from the mother’s affidavit, in relation to the father’s relationship with the children post-separation, she says this:
122. I did not leave [X] or [Y] unsupervised with the father at all. I felt it was very unsafe for me to do so. The three of us were scared, anxious and extremely vulnerable. We felt like we had been taken hostage in our home.
Tragically for the mother, she delivered in late 2014 her third child at home but the child did not survive. The mother says that about four months later she was arrested and charged and held in remand. She says the following:
171. [In] 2017 when my matter was heard […], was formally discharged […] and I accepted a plea bargain […] and was released from custody that day. I did this to enable me to be released from custody to save my children from the father's abuse.
Upon her arrest, the children were placed in the care of the father.
The mother has had sporadic contact with the children since her release from jail. Both parties have subsequently re-partnered and each has a child with their new partner.
A report was prepared by Ms B, psychologist, on 14 August 2018. The mother says that the report contains errors and was biased. That report recommended that the children live with the father, that he have sole parental responsibility, and laid out a process whereby the children might reengage with their mother. It is unclear to me why that report or aspects of that report have not been implemented.
For the purposes of the hearing before me, a Family Report was prepared by a Court Child Expert on 12 July 2022. It is clear, that Ms A has had access to the extensive material filed in the proceedings, including earlier reports and subpoenaed material.
She identified the issues as follows:
51. The following issues were identified as in dispute or of concern:
· Whether the children should spend time with their mother;
· If the children were to spend time with their mother, the nature and extent of this contact;
· Whether the children are at risk of physical and emotional abuse in their mother’s care;
· Whether the children are at risk of physical and emotional abuse in their father’s care;
· The children’s views and the weight which should be attached to these.
52. The following issues were identified as of concern by the Court Child Expert:
· [X’s] knowledge of the dispute, such as her knowledge of the details of the […] investigation against the mother and the contents of the mother’s Affidavit alleging that the father was abusive.
· The difference in the dynamics of the relationships that the mother has with each of the children.
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OBSERVATIONS OF INTERACTIONS
108. No observations of the children with either parent took place for this report. An observation assessment, is not considered appropriate in this matter, given that [Ms Sokol] has not seen the children for more than four years. A Court assessment observation may not provide the therapeutic structure, and ongoing support, that may be optimal for the children’s wellbeing, in a reunification meeting after such a lengthy estrangement.
EVALUATION
109. This is a complex matter and the children have lived most of their lives in the shadow of this dispute. [Ms Sokol] reported that she and the children need each other, and that she has done everything within her power to be reunited with [X] and [Y], and have them returned to her care. [Mr Royer] in contrast, reports that [Ms Sokol] has “not tried enough” and that it is her actions that have prevented her reunification with the children. Although issues of risk and safety were dominant concerns at the beginning of these proceedings, as the children have become older, it seems that it is the children’s emotional safety that is at the forefront of considerations. Neither parent seemed to be suggesting that the children would be at risk of physical harm or abuse in the other’s care. [Ms Sokol] indicated that she is accepting of the children living with their father, and [Mr Royer] believes that the children’s contact with the mother be carefully limited, so as to mitigate against any risk.
110. Both parents agree that it is in the best interests of the children to continue living with their father and for [Mr Royer] to have sole parental responsibility for them. Both these proposals seem appropriate, and in the children’s best interests, given that [X] and [Y] have lived exclusively with their father for more than seven and a half years, and have established a stable base with their father and [Ms C]. It also appears that [Ms C’s] presence is a protective factor for the children. It is practicable that [Mr Royer] holds sole parental responsibility for the children, given that there is no communication between the parents, and it would seem that there would be little chance of the parents developing a working relationship to make decisions together, given the acrimony between them. [Ms Sokol] has noted her reluctance at these proposals, as she “wants my children back”, however, she has reported that she will agree to this, as she has been advised that it is in the children’s best interests.
111. It is noted that [Ms Sokol] has raised allegations of historical family violence and sexual harm to the children perpetrated by [Mr Royer]. [Ms Sokol’s] positon is such that she is no longer proposing the removal of the children from the father’s care. This is in line with the position of child protection authorities, who consider the children to be safe in the paternal household. Neither [X] nor [Y] appeared to have any fear or concerns regarding their father.
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118. Moving forward the issue that needs to be addressed is the nature and extent of the contact that the children have with their mother, and what that time should look like. It is noted that that there have been serious historical concerns raised in relation to the mother’s parenting capacity and risk to the children. These concerns are not only in relation to the criminal charges made against [Ms Sokol], but also include the father’s allegations that the mother has significant distortion in her thinking, as reflected in her affidavit material. It seems, however from the father’s comments and actions, that the children’s contact with the mother does not present any significant risk of harm to the children. Child Safety have not raised any concerns regarding [Ms Sokol’s] care of the children, and no concerns were reportedly raised in the investigation of [Ms Sokol] parenting of [Z].
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121. Although [X] has made her preferences clear that she would not like to have contact with the mother until she has a car, and can drive away should she need to, it is suggested that it would be useful to address the relationship issues between them in a more timely way. Forcing [X] to meet with her mother may be detrimental to any future relationship between [X] and the mother, however, if [X] is invited to a facilitated meeting with the mother, in a safe place, [X] may choose to attend. It would be hoped that [Mr Royer] would encourage and be positive about such a meeting, as this may provide [X] with the opportunity to see if her relationship with [Ms Sokol] might be healed, challenging [X’s] absolute thinking. Regardless of the outcome, participating in such a process may also serve to provide a positive template for both [X] and [Y], as to how difficulties in relationships might be addressed with future significant others.
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123. This dispute has been going for too long, and it is unfortunate that there has been no traction with regards to the children’s estrangement from their mother. It is disappointing that although the expert report provided a pathway to move forward, nothing has occurred. Despite the serious allegations of risk, it appears that the parent’s focus has shifted to the emotional impacts on the children. It is unlikely that there will be any improvement in the co-parenting relationship, or trust between the parents. [X] and [Y] are vulnerable children, who need as much support as possible.
The recommendations in her Report were that the father have sole parental responsibility, that the children continue to live with him, and that children continue their sessions with a psychologist. She also made the following recommendation:
130. It is recommended that if the Court decides that the mother should spend time with the children, then this is facilitated by a practitioner, who has expertise in working with children from separated families, and takes place at a location near the children’s home. Any reunification process should be staged, and at a pace that the children can manage, and continually evaluated by the facilitating professional to ensure that both [X] and [Y] are coping with the process. Any future contact would be determined by the progress of the reunification process and the facilitating practitioner should inform the parents as to their opinion, as to what would be in the children’s best interests with regards to contact moving forward.
The mother in her Amended Initiating Application filed 16 December 2021 sought orders that the children live with their father and that he have sole parental responsibility. She sought orders that she spend unsupervised time in school holidays with the children. I note that the mother lives in Queensland, and the father and the children live in New South Wales.
The mother is represented by an experienced solicitor and very experienced counsel as is the father. Prior to the hearing, the Independent Children’s Lawyer (“ICL”) circulated a Minute of Order. The parties have reached agreement in the terms of that Minute, ably assisted I am sure by a very experienced ICL. As I have said earlier, the mother has raised very serious allegations against the father. There has been no testing of those allegations. The mother has elected, by her agreement to these terms, not to pursue the allegations and therefore did not seek any finding to be made in relation to them.
I note the recommendations contained in the Court Child Expert’s Report as well as the proposals of the ICL. I am of the view that the agreement that the parties have reached, embodied in the orders, are ones that are in the best interest of the children. I will make orders in terms of that document. Accordingly, in terms of the document that I will mark as Exhibit A, I make Orders 1 through to Orders 12.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 26 July 2022
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