Tabakin & Tabakin

Case [2021] FamCA 172

FAMILY COURT OF AUSTRALIA

Tabakin & Tabakin [2021] FamCA 172

File number(s): CAC 780 of 2016
Judgment of: MCCLELLAND DCJ
Date of judgment: 31 March 2021
Catchwords: FAMILY LAW – CHILDREN – Interim parenting – Where the mother seeks orders discharging previous orders of the court for the father to be reintroduced to the children through spending supervised time through a contact centre – Where no time has occurred pursuant to those orders – Allegations of sexual abuse of the children by the father –Where the matter is listed for final hearing in seven months’ time – Orders made for the parties and children to attend a s 11F child inclusive conference – Orders made for the supervised contact time to be suspended pending further order of the court.
Legislation:

Family Law Act 1975 (Cth) ss 11F, 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA

Evidence Act1995 (Cth) s 140
Cases cited:

A v A (1998) FLC 92-800

B and B (1993) FLC 92-357

Banks & Banks (2015) FLC 93-637

Blinko & Blinko [2015] FamCAFC 146

Cotton & Cotton (1983) FLC 91-330

Cowling & Cowling (1998) FLC 92-801

Deiter & Deiter [2011] FamCAFC 82

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

Finton & Kimble [2017] FCWA 106

Goode & Goode (2006) FLC 93-286

Johnson & Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

M v M (1988) 166 CLR 69

Masson v Parsons (2019) 266 CLR 554

Mazorski v Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

N & S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

R & C [1993] FamCA 62.

SS & AH [2010] FamCAFC 13

The Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249

The Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010)
Number of paragraphs: 115
Date of hearing: 23 March 2021
Place: Sydney by video web conference
Counsel for the Applicant: Ms Davis
Solicitor for the Applicant: Dillon-Smith Lawyers
Solicitor for the Respondent: Mr Fleming of Elizabeth Fleming & Associates Lawyers
Counsel for the Independent Children's Lawyer: Mr Ridge of Barker & Barker

ORDERS

CAC 780 of 2016
BETWEEN:

MS TABAKIN
Applicant
AND:

MR TABAKIN
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

31 MARCH 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.Orders 5 to 15, inclusive, of the orders made on 11 November 2019 are suspended until further order of the Court.

2.Orders 1 to 4, inclusive, of the orders made on 11 November 2019 remain in effect.

3.Order 2 of the orders made on 11 November 2019 is amended by adding the words “and shall not spend time with the father without the express written consent of the mother”.

4.Pursuant to s 11F of the Family Law Act

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AGLC
Tabakin & Tabakin [2021] FamCA 172
Case
[2021] FamCA 172
Decision Date

CaseChat Overview and Summary

In the matter of *Tabakin & Tabakin*, Ms Tabakin (the mother) applied to the Federal Circuit and Family Court of Australia for parenting orders concerning her two children, seeking to discharge previous orders that provided for supervised time between the father and the children. The mother proposed that she have sole parental responsibility without any caveats, and that the father have no time with the children unless with her express written consent. The father opposed this application, seeking the continuation of the existing interim orders pending a final hearing.

The court was required to determine the appropriate interim parenting arrangements for the children, considering allegations of sexual abuse by the father, the father's opposition to the mother's proposed orders, and the fact that the matter was listed for a final hearing in approximately seven months. The court also needed to consider the necessity of trial directions to ensure the progression of the matter.

McClelland DCJ applied the principles for interim proceedings as outlined in *Goode & Goode*, which involve identifying competing proposals, disputed issues, and relevant facts, and considering the matters set out in section 60CC of the *Family Law Act 1975* (Cth). The court noted that in interim proceedings, it is often not possible to make definitive findings of fact, particularly regarding serious allegations such as sexual abuse, which would impact the presumption of equal shared parental responsibility under section 61DA of the Act. Given the serious allegations and the lack of sufficient information to make findings at this interim stage, the court decided to suspend the supervised contact time pending further order. The court also ordered the parties and children to attend a child-inclusive conference with a Family Consultant, with separate meeting times for the mother and children compared to the father, and directed that the consultant's assessment be reportable to the court.

The court ordered that the previous orders for supervised contact between the father and children be suspended until further order. Existing orders regarding the mother's sole parental responsibility, with a requirement to consult the father on long-term decisions, were to remain in effect, although the order requiring consultation was amended to state that the father shall not spend time with the children without the mother's express written consent. The proceedings were confirmed to proceed to a final hearing commencing on 25 October 2021, with detailed directions for financial disclosure and the filing of affidavits.

Orders

Orders of the court

CAC 780 of 2016

BETWEEN:

MS TABAKIN

Applicant

AND:

MR TABAKIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

31 MARCH 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. Orders 5 to 15, inclusive, of the orders made on 11 November 2019 are suspended until further order of the Court.

2. Orders 1 to 4, inclusive, of the orders made on 11 November 2019 remain in effect.

3. Order 2 of the orders made on 11 November 2019 is amended by adding the words “and shall not spend time with the father without the express written consent of the mother”.

4. Pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”), the parties and the children are to attend a meeting or a series of meetings with a Family Consultant nominated by the Child Dispute Section of the Canberra Registry on a date and time to be fixed, with the mother and children to have separate meeting times to the father.

5. Pursuant to s 11C of the Act, such meetings pursuant to Order 3 be reportable and:

(a) The parties must attend at such times, dates and places as the consultant may advise;

(b) The mother must ensure that the children the subject of these proceedings attend at the conference and all meetings as instructed by the Family Consultant and to be available to meet with the Family Consultant;

(c) The Family Consultant is requested to provide to the Court (and, if, in the Consultant’s view, it is appropriate to do so, the parties) a memorandum outlining and reporting on:

(i) Their assessment in respect to the matters set out in s 60CC of the Act including, most relevantly, the children’s attitude to the prospect of spending time with their father.

(ii) Any views or opinions expressed by the children interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;

(d) Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties, the Independent Children’s Lawyer and the Court.

6. The Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).

7. Noting that the parties are advised that if they fail to attend any appointment with a Family Consultant or fail to comply with any instructions the Family Consultant gives to a party, I DIRECT that the Family Consultant must report the failure to the Court and the Court can then make orders as it considers appropriate on its own initiative or on application by a party or the Independent Children’s Lawyer.

8. Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Memorandum concerning the views and wishes of the children in relation to spending time with the father to the parties, the Independent Children’s Lawyer and the Court.

9. The proceedings are confirmed to proceed to hearing for five (5) days commencing on 25 October 2021 at 10am in the Canberra Registry of this Court.

10. I DIRECT that within 21 days of the date of these orders, the father is to file and serve a Financial Statement and to serve with that Financial Statement the following:

(a) a copy of his taxation returns for the three (3) most recent financial years;

(b) a copy of his taxation assessments for the three (3) most recent financial years;

(c) a copy of his bank records for the period of three (3) years ending on the date of these orders;

(d) the father’s payslips for the past 12 months;

(e) If relevant if the father owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the three (3) most recent financial years of the business.

11. I DIRECT that, by no later than 4 October 2021, each of the parties is to file and serve:

(a) A single updated consolidated trial Affidavit addressing;

(i) those matters set out in section 60CC of the Act,

(ii) any additional matters that the party considers to be relevant to the Court determining what orders are in the best interests of the child

(b) Any third party witness Affidavits that they intend to rely including attaching reports form treating doctors and or clinicians.

12. No party is to file any further material other than as provided for in these orders without leave of the Court.

13. The Independent Children’s Lawyer be granted liberty to issue such subpoenas as they deem necessary or as are reasonably requested by one or other of the parties.

14. The mother has liberty to issue up to five (5) subpoenas in respect to matters concerning the father’s financial disclosure.

15. Leave be granted to the Independent Children’s Lawyer to uplift and remove all documents produced on subpoena for the purpose of photocopying such documents, with such documents to be returned to the Registry within 48 hours of having been uplifted.

16. The practitioners for the parties are each to file and serve to each of the parties and to my associate by email, … , by no later than five (5) days prior to the hearing, a case outline document setting out the following:

(a) A concise set of orders to be sought if different from those already filed;

(b) A list of the Applications and Affidavits to be read out and if not the whole Affidavit, the relevant paragraphs relied upon;

(c) A chronology of major events of relevance of no more than three (3) pages; and

(d) A bullet-point summary of argument in relation to the issues in dispute.

17. In the event that any party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.

18. The parties are granted liberty to apply on apply on forty-eight (48) hours’ written notice to my Chambers and to the other parties including in respect to requesting the allocation of a date to hear any Application that may be made by a party after receipt of the s 11F child inclusive conference memorandum.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

This decision concerns an Application in a Case filed 2 March 2021 by Ms Tabakin (“the mother”) for parenting orders in respect to the children, X born in 2008 and Y born in 2012 (collectively, “the children”). By way of summary, the mother effectively seeks to discharge and replace the orders made on 11 November 2019. Those orders provide for the mother to have sole parental responsibility for the children, save for a consultation process with Mr Tabakin (“the father”), and for the father to spend supervised time with the children. In place of those orders, the mother proposes that orders to be made for the mother to have sole parental responsibility for the children, with no caveats, and for the father to spend no time with the children “without the express written consent of the Mother”. The father opposes the mother’s Application and seeks that the current interim orders remain in place pending final determination of the matter. The matter is currently listed for final hearing in October of this year.RELEVANT BACKGROUND AND FACTUAL CONTENTIONS The mother is currently 37 years of age. The father is currently 36 years of age. The mother became blind at the age of 17 years. The parties met during the course of their TAFE studies, in approximately 2001, and commenced cohabitation in approximately 2003 and married approximately one (1) year later. The parties were in a relationship for approximately 11 years, and married for a period of nine years, prior to separating in 2014. Following separation, they came to an arrangement whereby the children remained primarily in the mother’s care and spent time with the father as agreed between the parties. Both parties allege that there were instances of physical violence between them during the course of their relationship. However, it is not possible, in these interim proceedings, to make a determination in respect to those respective allegations. The father contends that he has autism spectrum disorder however, to date, no evidence has been provided to the Court by an appropriately qualified expert to confirm that is the case. The parties’ oldest daughter X has some learning difficulties and has been diagnosed with autism. In late 2015, the mother ceased the children spending time with the father following alleged disclosures made by Y that the father had sexually abused her. The father was subsequently charged with indecent assault of a child and possession of child sexual abuse material, though neither charges resulted in a conviction, with the latter being withdrawn before it could proceed to criminal prosecution. The father has previously been charged with breaching, on three (3) occasions, an Apprehended Domestic Violence Order protecting the mother and the children. In these interim proceedings, the Court is without sufficient information to enable a determination to be made regarding the circumstances in which that conduct occurred. The parties have been involved in protracted litigation for a period of five (5) years since these proceedings were commenced by an Initiating Application filed by the mother on 18 May 2016. There have been a number of orders made by this Court over the course of the litigation, including with respect to the interim parenting arrangements for the children.

Evidence

Evidence Before The Court

In circumstances where this matter was brought on quite urgently, the Independent Children’s Lawyer has not proposed any specific orders. EVIDENCE The mother relied on the following documents:(a)Application in a Case filed by the mother on 2 March 2021 and sealed 3 March 2021; (b)Affidavit of the mother filed 2 March 2021;(c)Affidavit in reply of the mother filed 19 March 2021; and(d)Affidavit of Ms G filed 19 March 2021. The father relied on the following documents:(a)Response to an Application in a Case filed 15 March 2021;(b)Affidavit of the father filed 15 March 2021; and(c)Affidavit of the paternal grandmother filed 15 March 2021.THE LAW – CONCEPTS AND PRINCIPLES The decision of the Full Court in Goode & Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for relocation orders on an interim basis. Under the subheading “How should interim proceedings be conducted?”, the Full Court, at [81]–[82], said:81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed. 82.In an interim case that would involve the following:(a)identifying the competing proposals of the parties;(b)identifying the issues in dispute in the interim hearing;(c)identifying any agreed or uncontested relevant facts;(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Also of relevance to these proceedings is the object set out in section s 60B(1)(d) of the Act, which is “ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”. CONSIDERATIONCompeting proposals of the parties I have earlier set out the parties’ competing Applications in this matter. In addition to the parties’ respective interim Applications, in circumstances where this matter has been listed for hearing for five (5) days commencing on 25 October 2021, it is necessary for the Court to consider what trial directions are necessary for the progression of the matter.Parties’ contentions and agreed or objectively verifiable facts These are set out under the subheading “Relevant background and factual contentions”, set out above. Presumption of equal shared parental responsibility Section 61DA of the Act relevantly provides: (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or(b)family violence.(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. In these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties, including most significantly whether the father sexually assaulted the parties’ youngest daughter which, if found, would displace the presumption that an order for equal shared parental responsibility should be made. However, the parties, by consent, agreed to the 11 November 2019 consent orders giving the mother sole parental responsibility, save to the extent that she is required to consult with the father before making major long-term decisions in respect to the children. The mother contends that the order obliging her to consult with the father should be discharged on the basis that the father has not engaged cooperatively with the mother in respect to the decisions that she has made and, rather, he has been more focused upon the potential financial consequences of any such decisions which she makes. The difficulty that I have in respect to this issue is, however, that the asserted difficulties in communication with the father have not been addressed in the Affidavits filed by the mother in these proceedings. Accordingly, on the basis of material presented to me, in these interim proceedings, I am not persuaded that there is a need to revisit orders 3 and 4 of the 11 November 2009 consent orders. The mother is not, however, precluded from adducing such evidence at the final hearing.