Tarok & Kardan (No 2)
[2023] FedCFamC1F 691
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarok & Kardan (No 2) [2023] FedCFamC1F 691
File number(s): SYC 7133 of 2021 Judgment of: SCHONELL J Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – PARENTING – Where there are current orders in place which provide for the father to have no contact with the children – Where the father sought orders for time with the children following the single expert’s recommendation that time recommence – Where the single expert held concerns regarding the father’s negative emotional responses – Where the parties have engaged in an assessment for family therapy and the feedback report indicated that the father’s attitude and behaviour has not changed – Where the family therapist recommended that the father engage in family therapy as a prerequisite to recommencing his time with the children – Where family therapy has not yet began – Where it is premature at this stage for the children to spend time with the father – Father’s application and mother’s response dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Cases cited: Adamson & Adamson [2018] FamCA 523
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 70 Date of hearing: 16 August 2023 Place: Sydney Counsel for the Applicant: Mr Othen Solicitor for the Applicant: Gorval Lynch Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Dorter Family Lawyers and Mediators Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 7133 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TAROK
Applicant
AND: MR KARDAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 16 June 2023 is dismissed.
2.The Response to Application in a Proceeding filed 24 July 2023 is dismissed.
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 Tarok & Kardan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
Before the Court are interim proceedings between the applicant father (“the father”) and the respondent mother (“the mother”) regarding the father’s time with the parties’ three children aged 14, 11 and 6 years.
These interim proceedings are part of wider parenting and financial proceedings that have been on foot since September 2021. The relationship between the parties is highly conflictual with a number of applications having been brought before the Court.
The present application arises in circumstances where the father has had no contact with the children as a consequence of orders made on 14 July 2022.
The father sought orders in his application for the children to spend time with him each Wednesday for three hours and each Sunday for seven hours. He also sought to speak to the children by telephone each Monday and Friday for half an hour.
For her part, the mother sought a dismissal of the father’s application. In the alternative, she sought for the children to spend supervised time with father for three hours each Saturday. The mother also sought orders relating to therapy for the father as well as for the two older children.
The Independent Children’s Lawyer’s (“the ICL’s”) initial position was that the children should spend time with the father each Saturday for three hours for a period of three months, with such time thereafter to increase to five hours. The ICL also sought orders that would allow the father to speak to the children on the phone each Thursday.
The father relied upon the following documents:
(1)Application in a Proceeding filed 16 June 2023;
(2)Affidavit of father filed 16 June 2023; and
(3)Case Outline document filed 14 August 2023.
The mother relied upon the following documents:
(1)Response to Application in a Proceeding filed 24 July 2023;
(2)Affidavit of mother filed 24 July 2023; and
(3)Case Outline document filed 14 August 2023.
Each of the parties and the ICL relied upon the Family Report of the single expert Dr F dated 2 February 2023. The ICL also relied upon documents produced by C School marked “[f]or the eyes of the Judge only”.
BACKGROUND
The father was born in 1974 and is currently 49 years of age.
The mother was born in 1976 and is currently 46 years of age.
The parties’ commenced cohabitation in 2005, married in 2013 and separated on a final basis on 6 August 2021. The parties were divorced in 2022.
There are three children of the parties’ relationship, namely X aged 14, Y aged 11 and Z aged 6.
The father also has a child, D, aged 9 years, from another relationship. It is unclear whether and to what extent the father has a relationship with him. The father initially indicated to the single expert that he had minimal contact with D but then later suggested that he had an active role in the child’s life.
The father contended that both parties cared for the children and that he was an active parent who had a fundamental role in caring for the children. The mother contended that she was the primary carer of the children throughout the marriage and that she received little assistance from the father. Since separation, the children have lived with the mother and the mother has been their primary carer.
The mother deposed that the father was controlling and that she was subjected to physical and psychological violence by the father. The father denied these allegations to the single expert and contended that he had been subjected to verbal abuse and denigration by the mother. The mother denied these allegations. The mother deposed that the father continued to perpetrate family violence after separation by communicating in an abusive and harassing manner. The single expert recorded in the Family Report that the two older children reported having witnessed family violence between their parents (at paragraph 3).
As stated earlier, the parties separated on 6 August 2021. The mother deposed that she left the matrimonial home with the children due to family violence. She reported to the single expert that she “fled the house” and that she emailed the father that she was “unable to remain in their marriage due to his repeated extramarital affairs” (Family Report, paragraph 17).
The mother commenced proceedings on 30 September 2021.
Following the parties’ separation on 6 August 2021, the children spent no time with the father until 15 November 2021. On that date, the mother deposed that the father spent supervised time with the children.
On 31 January 2022, orders were made by consent that pending further order the children would spend time with the father for three hours every Friday and for four hours every Saturday.
On 26 April 2022, orders were made that the children live with the mother and spend time with the father, building up to two nights a fortnight and time after school on the alternate Friday. Orders were also made for the father’s time to progress to two block periods of three nights in the holidays.
On 17 May 2022, the father filed an Application for Review of the orders made on 26 April 2022.
On 27 May 2022, the father issued a subpoena to C School seeking for “school counselling notes, reports and correspondence” regarding Y to be produced.
In responding to the subpoena issued by the father, C School subsequently provided material marked “[f]or the eyes of the Judge only”. Judge Vasta, being the judge dealing with the Review Application, listed the matter for mention on 14 July 2022. His Honour made an order that pending further order, the father have no contact with the children. His Honour also released the information from the school to the parties, inviting further submissions relating to its contents. The information provided by the school revealed that Y had disclosed to the school counsellor disturbing comments made by the father.
On 4 August 2022, Judge Vasta delivered reasons for judgment in respect of the Review Application and ordered that the father have no contact with the father and that the mother have sole parental responsibility.
On 19 August 2022, the father filed a Notice of Appeal in relation to the orders of 4 August 2022. The appeal was subsequently deemed abandoned on 16 September 2022.
On 9 September 2022, the matter was transferred to Division 1 of the Court.
In late 2022, final ADVO’s were made against the father for the protection of the mother and the children X and Y.
On 13 February 2023, the Family Report was released to the parties. The single expert recommended that the father spend day time with the children on two days for a period of six months and that time could thereafter increase depending on the father’s ability to control his negative emotional responses. He also recommended that both parties participate in psychological therapy and that family therapy may be of assistance to the children.
On 26 June 2023, orders were made for the parties to engage with E Family Services for the intake process and to thereafter to engage in family therapy with E Family Services.
DISCUSSION
The father submitted that the recommendations of the single expert were supportive of the reintroduction of time with the children, and that the father had engaged with a therapist and was willing to engage with family therapy. His counsel submitted that a delay in the reintroduction of time was inconsistent with the children’s welfare.
The father’s counsel also submitted that face to face time with children should recommence as it would otherwise be difficult to determine the matter on a final basis given that the final hearing is to occur in September next year.
The mother’s counsel submitted that the Court should dismiss the father’s application as there had been no change in circumstances sufficient to warrant a reconsideration of the orders made by Judge Vasta. In that respect, she submitted as follows in her Case Outline:
7. While the mother acknowledges that since the Orders of Judge Vasta, the Court now has the benefit of a report by [Dr F], the report was produced for the purpose of a final hearing, after the Court has had the benefit of testing that evidence.
8. The report does not identify anything about the present interim orders that expose children to an imminent risk of harm from their current time arrangements. If anything, the additional material before the Court explores questions about the nature and extent of the risk in the father’s household. As that risk has been contemplated and addressed by the Orders of Judge Vasta, any changes to that arrangement are matters for final hearing, and not matters that can be properly or appropriately addressed through a second interim hearing.
9. The expert report also explores questions of risk that were already before the Court in August 2022. The opinion of experts is not a sufficient change in circumstances.
She also submitted that the reports of the family therapist Ms G were consistent with a proposition that the father continued to maintain the views he had expressed to the single expert, and that would lead to the children being re-exposed to such attitudes and views. She further submitted that the children’s wishes were to not spend time with the father and that the absence of evidence from the father’s therapist would lead the Court to proceed cautiously.
The ICL submitted that that it was important that the children resume a relationship with the father, albeit on a supervised basis, and that it could commence after about three months of therapy. The ICL submitted that this would ensure that the children have some sort of relationship with the father by the time of the final hearing next year.
The Family Report makes for chilling reading as to the possible prognosis for these children in the event the parties continue to parent the children in the way they have to date.
Relevant to this application, I note the following observations of the single expert:
95. The current assessment has found that [Mr Kardan] and [Ms Tarok] had a long relationship, commencing cohabitation in 2005 and separating on a final basis in August 2021. Their relationship appears to have been relatively positive during the early years, however, reportedly became increasingly tumultuous as the years passed. … Both parties report that instances of family violence have occurred between them, with [Ms Tarok] making allegations of coercive control and physical abuse perpetrated towards her by [Mr Kardan] during their marriage. Conversely, [Mr Kardan] has also made allegations of family violence, reporting to have been subjected to chronic verbal abuse and denigration by [Ms Tarok] during arguments.
…
97. There is evidence that throughout the marriage there were repeated incidents of family violence between the parties. Of concern, is that for each of the reported incidents which occurred between [Ms Tarok] and [Mr Kardan], at least one of the children (if not possibly, all of them) were present and witnessed the behaviours of their parents. Both [X] and [Y] were able to describe numerous incidents that they had witnessed between their parents and there is considerable evidence that both children have been significantly impacted by these experiences.
98.… [X] and [Y] reported independently that [Mr Kardan] raised his voice towards them on a regular basis, which they found intimidating and repeatedly frightening. [Mr Kardan] denied these allegations, at one point suggesting that his children were lying about these events as they had not occurred. Noting this, when further questioned [Mr Kardan] was able to acknowledge that when he was distressed or angry the volume of his voice did in fact increase, and his tone likely changed, which may account for the interpretation of his children that their father ‘shouted’ at them, when he may not have considered that he was. Regardless, it was a consistent narrative throughout this assessment from the older children and from [Ms Tarok], that [Mr Kardan] was at times a highly intimidating man, who made those around him feel uncomfortable when he was displeased in any way.
99. [Mr Kardan] was also found to hold some more extreme views, potentially conspiracy based, particularly surrounding the COVID-19 vaccination. When questioned, [Mr Kardan] strongly downplayed his views, indicating instead that he was not overly concerned about the vaccine, did not mind that his children had been vaccinated and generally presenting as holding cautious but not extreme views surrounding the COVID-19 vaccinations. However, the information provided by the children, in particular [X], suggested that [Mr Kardan] may not have been entirely truthful during his interview with regard to his view on this topic. Both [X] and [Ms Tarok] reported that [Mr Kardan] had in fact been consistent in his extreme narrative surrounding the catastrophic outcomes that would befall any person who received the vaccines, with multiple text messages exchanged between [Mr Kardan] and [X], and emails between [Ms Tarok] and [Mr Kardan], confirming their allegations. The concern here, is not that [Mr Kardan] holds such views, as he is totally within his rights to believe this if he so chooses, however, to share his views with his children, suggesting to them that they will die or have other frightening outcomes occur, such as turn into ‘zombies’ after they had been vaccinated, cannot be condoned. [X] [Y], and [Z] are young children with very limited life experience to date, their capacity to correctly process and/or determine the veracity of their father’s messages is severely limited.
100.… for [Mr Kardan] to dispel frightening propaganda to his children it shows a profound lack of regard for the wellbeing of his children during this very difficult time. His actions are not child-focused and it is recommended that he be strongly counselled to refrain from sharing his conspiracy theories with his children again in the future. [Mr Kardan’s] extreme views do not appear to start and finish with vaccines, but were also reported to include paranoid views about the devil entering homes through the electrical system, belief that we are facing a potential apocalypse and that the government was using Rapid Antigen Testing to poison the population. When questioned about this directly, [Mr Kardan] was at first defensive and denied this. Then when pressed conceded that he had not used candles in the home as a result of fear of the devil entering the house through the electrical system, explaining that he had used candles as there had been a problem with the safety switch in his fuse box.
…
102. The children in this matter have all indicated (that is, [X] and [Y] who were considered capable of expressing independent views) that they want to be able to spend more consistent time with their father, and aside from [Z] who was not interviewed for the current assessment, if [Mr Kardan] was better able to control his temper and stop shouting at them and attributing blame toward them for what is ostensibly his and [Ms Tarok’s] serious problems. It is noted that both [X] and [Y] independently reported experiencing feelings of rejection by their father, stating that they perceived themselves to have been blamed for their parents’ separation by their father, particularly with regard to their father’s view that they should not have agreed to leave the family home with their mother, with [X] feeling this most acutely at the time of the assessment.
103. There was evidence to suggest that both [Mr Kardan]and [Ms Tarok] have both included the children in their conflict for a considerable length of time. The children independently reported that they had felt under pressure from both their mother and their father to align more strongly with each parent, at the direct cost of their relationship with the alternate parent. …
104. [X], [Y] and [Z] have all been impacted by their parents’ conflict, with elevated anxiety present in both [X] and [Y] ([Y] was not tested due to her young age). Furthermore, [X] displayed overdeveloped feelings of responsibility in relation to his mother’s welfare and also towards the welfare of his siblings while in his father’s care. Should the children continue to be drawn into their parents’ conflict, either blatantly as [Mr Kardan] appears to be doing, or on a subtle emotional basis as [Ms Tarok] appears to be doing, there is a very strong possibility that their mental health will decline and their wellbeing be significantly compromised as they move into adolescence. It is strongly recommended that both [Ms Tarok] and [Mr Kardan] cease including the children in their relational conflict.
106.… Having identified that all three children are displaying behavioural indications of distress, it is strongly believed that their distress is directly attributable to their parents’ conflict, the modelled distrust of each parent by the other, and also the blanket separation from their father which is being mandated upon them. Both children reported they would like a relationship with their father, but indicated that they were distressed by his aggressive and accusatory manner and his conspiratorial thinking, stating that should he be able to stop this (or at least better contain it) in the future that they would relish spending time with him again. …
…
109. Having a consistent and easy to follow care arrangement schedule for [X], [Y] and [Z], which does not include fear towards their father, as they enter into their teenage years is considered to be of paramount importance for their psychological wellbeing, and as such, an arrangement that allows for this should take precedent over one that does not. Though this obviously rests on a significant assumption that the father engages in sound professional therapeutic intervention to assist him gain insight into his conduct thus far and to work to improve his temper and frustration control abilities. Furthermore, it is evident that the children have experienced distress, having been witness to their parents’ conflict about their care and would be greatly benefited by the possibility of a positive outcome at the conclusion of the Court process.
110. In sum, therefore, it is my opinion that [X], [Y] and [Z] would ultimately benefit from remaining in the full time care of [Ms Tarok], seeing their father during the day time only on two days which are appropriate for their school and extracurricular calendars, for a period of six months until [Mr Kardan] has been able to display consistently that he is able to control his negative emotional physical and verbal responses, refrain from sharing his conspiratorial views with his children, and refrain from all derogatory talk about their mother. After a period of six months, should [Mr Kardan] have been able to show his capacity to meet the above requirements, overnight time could commence, with the children spending Saturday night with their father on each alternate weekend, progressing by one night every three months until a 3/11 of 14 night arrangement (at least, of longer by agreement) can be reached. This would encompass that [Mr Kardan] spending time with the children on alternate weekends, from Friday afternoon to Monday morning and have the potentiality for half of the school holidays. In line with that, shared Parental Responsibility should be confirmed for all areas of the children’s care, aside from medical and health, for which it is a clear recommendation that [Ms Tarok] hold sole Parental Responsibility. This would be psychologically beneficial to all parties, but most especially to [X], [Y] and [Z].
111. It is recommended the Court consider mandating both [Mr Kardan] and [Ms Tarok] to engage in psychological therapy with an experienced clinical or child psychologist who works in conflicted Family Law matters, to learn the negative impact their controlling and persuasive behaviours are having on their children and will continue to have if they do not improve their overall parenting and communication skills as a matter of haste. [X] and [Y] may be assisted by their attendance in Family Therapy with a suitably trained therapist (being a clinical child psychologist), to allow them to work through their fears, rebuild their relationship with their father and learn effective strategies to improve the communication between them and manage their anxiety whilst in his care in the future. Should either party be unwilling to enter into the above proposed care relationship for the children, FDR-mediation could also be considered, to allow both parents to gain further insight into the profoundly negative impact their toxic and resentful relationship with one another is having on their children, and to help them to come to an amicable and reasonable care arrangement which takes into account their children’s increasing age, and to assist them to have an effective co-parenting relationship into the future and bring closure to this complex family law matter.
The observations and recommendations of the single expert arise out of interviews conducted in October 2022.
Since then the children have continued to not see their father.
The observations and recommendations of the single expert also need to be considered in the light of the recent reports of the jointly appointed family therapist.
The mother as part of her tender bundle (Exhibit 2) sought to rely on two reports from the family therapist dated 24 July 2023 and 4 August 2023.
Her reports record the following:
[Assessment and Feedback Report dated 24 July 2023]
[X’s] views: …
X stated that he missed his father but does not want to see him at the moment. He stated that his father had “changed a lot” in the last year and had become even angrier than before. He referred to instances of shouting, hitting and throwing things. He expressed that he was concerned about his parents hurting each other or himself and his siblings.. He stated that [Mr Kardan] regularly showed his anger towards him and that his father blamed him ([X]) for their mother leaving and the ensuing conflict.
… When prompted about his father he agreed that he would like to spend more time with him but was unsure at this point whether that “would be a good idea” and “not yet”. He stated that he had been happy that they were to spend more time with him last year but that when it happened it was not good at all and not what he had hoped for.
Therefore he is not confident that his father has changed and wants more evidence before spending more time. Asked what ‘evidence’ might be enough he stated that he did not really know.
[Y’s] views: … She stated that father called her a “whore”. She stated that at the beginning she had been frightened but then later “I was annoyed”. [Y] stated that when she no longer had to see her father that she “can breathe again”. She stated that she had been asked by her father to go to the Police Station to say that she wanted to be with her father. She stated that [X] was frightened to say “no” to their father ever but that she said “no”. She stated that her father had said he would slap her if she did not say what he wanted. He did not hit her. [Y] stated she was frightened whenever they went to the shopping centre in case she saw her father or even his car. She stated that she does not want to be with the father at all at the moment.
…
Parenting capacity
[Mr Kardan]: [Mr Kardan] appeared very angry at the situation and resentful and dismissive of his ex wife. He listed a number of criticisms of her past behaviour but mentioned nothing of her behaviour or competence as a mother. He stated that in 2017 he believed that his wife had “plotted to have a girl in his office to be a ‘honey trap’ so that he would have an affair with this girl”. He stated that in 2018 he believed that [Ms Tarok] was plotting to take over the business. He claimed that all marital affairs had been as a result of [Ms Tarok’s] behaviour and expressed neither remorse nor regret. He stated that he believed that [Dr F] had hidden a lot of information in his report. He stated that his aim was to have 50:50% shared time with his children. His final comment was that if “she gets full custody she will get 70% of the property rights”.
[Ms Tarok]: [Ms Tarok] presented as a mother who had tried to allow her children to develop a relationship with their father after the separation but now was anxious that he be with the children. The children were clearly very happy in her presence and the writer could hear much laughter from the waiting room as each child was being interviewed in the session. She demonstrated affection and the children clearly had an appropriate attachment to her.
Capacity of parents to accept treatment
[Mr Kardan]: … He declined to talk about what had transpired in these sessions.
[Assessment and Feedback Report dated 4 August 2023]
Bearing in mind that there are allegations of family violence that appear significant it is recommended that his willingness to engage in evidence-based family therapy is a prerequisite for the potential re-introduction to the children. As well it is recommended that [Mr Kardan] complete the Triple P course and undertake the Parenting After Separation course.
…
It is recommended that the older two children be given to opportunity to work with a Child and Adolescent Therapist (separate from those of the parents) to develop strategies to manage their anxiety in preparation for potentially spending time with their father.
Ideally, the children’s sessions would be in person as activities can be better tailored to age-appropriate understandings. Any joint sessions the parents may attend are recommended to take place remotely.
Type of treatment
It is recommended that each parent see the Family Therapist separately. It is not recommended that they be seen together until such time as the family therapist deems it appropriate. Initially, a course of one appointment is recommended for each parent with this to be followed by up to four fortnightly appointments either in person or via telehealth. Further appointments may be deemed necessary by the appointed family Therapist to consider evidence of the change in parenting relationships and their preparedness to engage in appropriate parenting practices.
APPLICABLE LAW
This is an interim hearing and there has been no cross-examination.
By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many. Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
However, just because I am unable to determine or resolve disputed facts or assertions does not mean that I ignore allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
88. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
100. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
PRIMARY AND ADDITIONAL CONSIDERATIONS
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
In applying the primary considerations, the benefit to the children of having a meaningful relationship with both of the parents is subservient to the need to protect the children from the risks and harms identified in the subsection.
In relation to the question of risk, I place considerable weight on the observation of the single expert to which I have referred to earlier as well as the two reports from the family therapist.
I am concerned that the risks that were identified by single expert have not ameliorated or lessened in any way with the passage of time. On one view of the reports of the family therapist, things have remained the same despite the intervention of a treating therapist in so far as it relates to the father’s attitude to the mother. I am satisfied that unsupervised time would run the risk of exposing the children to the risks that are highlighted.
Not all of the additional considerations are relevant to the issues I have to determine.
In relation to the children’s views, the single expert observed that:
112.… Both children indicated that they wanted to spend time with their father in the future, and had missed spending regular time with him since their parents separation. … Despite this, both agreed that if [Mr Kardan] was able to control his temper, stop treating them like adults and sharing his negative views about their mother with them, that they would like to see him on a more regular basis.
The views of the children as expressed to the single expert needs to be reappraised in light of the observations of the family therapist, which suggests that the children are very apprehensive about resuming time with their father and do not yet want to resume time with him.
In relation to the resumption of the children’s time with the father, the single expert recommended that:
115.… Therefore, it is considered important that the relationship between [Mr Kardan] and his children be supported, with a resumption of care time to recommence as soon as practicable in order to prevent any further fracture of the children’s relationship with their father. …
The Family Report and the reports of the family therapist record significant reservations about the capacity of both parents to meet the children’s emotional needs. It is very concerning that the family therapist recorded in her report of 24 July 2023 that:
… [Mr Kardan] appeared very angry at the situation and resentful and dismissive of his ex wife. He listed a number of criticisms of her past behaviour but mentioned nothing of her behaviour or competence as a mother. He stated that in 2017 he believed that his wife had “plotted to have a girl in his office to be a ‘honey trap’ so that he would have an affair with this girl”. He stated that in 2018 he believed that [Ms Tarok] was plotting to take over the business. He claimed that all marital affairs had been as a result of [Ms Tarok’s] behaviour and expressed neither remorse nor regret. He stated that he believed that [Dr F] had hidden a lot of information in his report. He stated that his aim was to have 50:50% shared time with his children. His final comment was that if “she gets full custody she will get 70% of the property rights”.
It is concerning as to the father’s degree of insight, particularly having had the benefit of reading the Family Report, that he continues to criticise and vilify the mother while not reflecting on his own behaviour. It raises a real concern about his capacity to restrain himself in the presence of the children.
CONCLUSION
I recognise in reaching my decision that the single expert had recommended that the children’s time with their father be limited to day time only with no overnights. Any progression to overnight time was according to single expert dependent upon the father being “able to appropriately control his emotions, his verbal tirades and to entirely cease sharing his conspiracy theories with the children and denigrating [the mother] while in their presence” (Family Report, paragraph 113).
However, the single expert’s recommendations need to be seen in light of the recent reports from the family therapist. It remains speculative whether in light of those reports the single expert would continue to adhere to his earlier recommendations.
Notwithstanding the single expert’s view, I am not satisfied that at this stage the children should be exposed to the risk of such conduct as identified by the single expert occurring even during day only time. It is clear that the father’s behaviour has had a detrimental effect on the children. I am not prepared to expose them to the risk of a reoccurrence of such conduct nor do I see the logical connection between the ceasing of such behaviours and overnight time. Simply put, this behaviour must cease irrespective of whether the children spend day time only or overnight time. In view of what has been recorded by the family therapist, there is a risk that there has not been any amelioration in the father’s attitudes.
Whilst the father’s affidavit suggested he had enrolled in various courses as suggested by the single expert and as he told the family therapist, no objective documentary evidence was adduced that he had satisfactorily taken part in and/or completed such courses. As to the therapy recommended by the single expert, his counsel informed me that he has had about five sessions with a therapist. There is no evidence adduced by the father from this person as to his progress. It is troubling that he refuses to discuss that therapy with the family therapist.
The children have not seen their father for over 12 months. They are still relatively young and I am of the view that it places a significant burden on the children to in effect either tolerate or police their father’s behaviours if he were unsupervised. In light of what the father said to the family therapist about the mother, I cannot disregard the risk that he would say those things even in the presence of a supervisor.
The recommendation of the family therapist in her report of 4 August 2023 is that the father’s willingness to engage in evidence based family therapy is “a prerequisite for the potential re-introduction to the children” (at page 5). I am informed by his counsel and it is apparent from his affidavit that he is willing. However, more than just a mere statement of willingness is required particularly in light of what the family therapist says in her report under the heading of “[t]ype of treatment”.
There is also the issue of the children’s capacity to deal with a reintroduction of time. They have not yet engaged with the therapist identified by the family therapist and will not see the therapist for at least three to four weeks.
At this stage, in circumstances where there is no objective evidence that I can rely upon that the asserted change of heart by the father has in fact occurred, where there is no evidence from the father’s therapist of her view of the father and any progress he has made in his therapy with her, and where family therapy as suggested by the single expert is yet to occur, I am not satisfied that it is presently in the interests of these children that they spend any time with their father. In those circumstances and in light of the family therapist’s report, I am of the view that it is premature at this stage to make any orders for time between the father and the children.
Accordingly, I will dismiss both the father’s interim application and the mother’s response.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 18 August 2023
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