Tatari & Tatari (No 3)

Case [2024] FedCFamC1F 445

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tatari & Tatari (No 3) [2024] FedCFamC1F 445

File number: MLC 12557 of 2021
Judgment of: CARTER J
Date of judgment: 1 July 2024
Catchwords: FAMILY LAW – PARENTING – Where the mother alleges the father has sexually abused the children – Where the father has not spent time with the children since July 2022 – Where the paternal grandmother has been joined to the proceedings – Whether the father presents an unacceptable risk to the children – Where the mother has failed to comply with orders for supervised time and family therapy – Orders made for a gradual change of residence into the father’s care supported by the paternal grandmother and family therapy – Interim orders made for the children’s time with the mother.    
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 67ZC
Cases cited:

AMS v AIF (1999) 199 CLR 160

Bielen & Kozma (2022) 66 Fam LR 59

Fitzwater & Fitzwater(2019) 60 Fam LR 212

Isles & Nelissen (2022) 65 Fam LR 288

Johnson & Page (2007) FLC 93-344

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) FLC 93-405

N & S & the Separate Representative (1996) FLC 92-655

Oberlin & Infeld (2021) 63 Fam LR 88

Division: Division 1 First Instance
Number of paragraphs: 442
Date of hearing: 6 – 8 February, 14 – 15 March 2024
Place: Melbourne
Counsel for the Applicant: Mr Cash
Solicitor for the Applicant: Mayek Legal
Counsel for the Respondent: Ms Brennan
Solicitor for the Respondent: Resolve Conflict Family Lawyers
Counsel for the Independent Children's Lawyer: Ms Tenace
Solicitor for the Independent Children's Lawyer: Patford-Smith Legal Services

ORDERS

MLC 12557 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS TATARI

Applicant
AND:

MR TATARI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

1 JULY 2024

THE COURT ORDERS THAT:

1.The paternal grandmother be joined as the second respondent to these parenting proceedings.

Interim Orders

Children’s time with the mother

2.Until further order, after the children have had three sessions with the family therapist in accordance with Order 10 herein, the children spend professionally supervised time with the mother for a period of not less than three hours each week at times agreed between the parties and failing agreement, each Monday from 4.30 pm to 7.30 pm.

3.          For the purposes of the children’s professionally supervised time with their mother:

(a)the mother and the Independent Children's Lawyer agree on the professional supervisor;

(b)the mother and father forthwith do all acts and things necessary to engage the family with that professional supervisor;

(c)the paternal grandmother shall provide the children for supervised time when they are in her care, and the father shall provide the children for supervised time when they are in his care; and

(d)all supervised time shall be at the mother’s…

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Details
AGLC
Tatari & Tatari (No 3) [2024] FedCFamC1F 445
Case
[2024] FedCFamC1F 445
Decision Date

CaseChat Overview and Summary

The case between Ms Tatari and Mr Tatari, heard by Carter J in the Federal Circuit and Family Court of Australia, involved allegations by the mother that the father had sexually abused their children. The court was tasked with determining whether the father posed an unacceptable risk to the children, whether the children's best interests would be served by a change in their residence to their father's care, and the appropriate arrangements for the children's time with their mother. The court also needed to consider the mother's failure to comply with orders for supervised time and family therapy.

The court found that the father did not present an unacceptable risk to the children, and that the children's best interests would be served by transitioning their residence to their father's care, supported by the paternal grandmother and family therapy. The court concluded that it was premature to make final orders regarding the mother's time with the children, as the matter would need to return to court once the children had transitioned into their father's care and family therapy had commenced.

Carter J ordered that the paternal grandmother be joined as the second respondent to the proceedings. Interim orders were made for the children's time with their mother, to occur after three sessions with the family therapist, and to be professionally supervised. The father was granted sole parental responsibility for making decisions regarding the children's health and education, with specific processes outlined for how these decisions should be communicated and considered. The children were ordered to live with the paternal grandmother initially, transitioning to the father's care following a gradual increase in unsupervised time. Family therapy was mandated to support the children's relationship with their father and their transition into his care. The mother was restrained from removing the children from the care of the father or attending their school without prior written consent. Restraints were also placed on the parties to prevent denigration, discussing disputes with the children, and other specified behaviours. The father and paternal grandmother were required to complete the Tuning in to Kids Program and to use the "Our Family Wizard" co-parenting application for communication. The court noted that final determinations regarding the children's time with their mother and the parties' property claims remained pending.

Orders

Orders of the court

MLC 12557 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS TATARI

Applicant

AND:

MR TATARI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

1 JULY 2024

THE COURT ORDERS THAT:

1. The paternal grandmother be joined as the second respondent to these parenting proceedings.

Interim Orders

Children’s time with the mother

2. Until further order, after the children have had three sessions with the family therapist in accordance with Order 10 herein, the children spend professionally supervised time with the mother for a period of not less than three hours each week at times agreed between the parties and failing agreement, each Monday from 4.30 pm to 7.30 pm.

3. For the purposes of the children’s professionally supervised time with their mother:

(a) the mother and the Independent Children's Lawyer agree on the professional supervisor;

(b) the mother and father forthwith do all acts and things necessary to engage the family with that professional supervisor;

(c) the paternal grandmother shall provide the children for supervised time when they are in her care, and the father shall provide the children for supervised time when they are in his care; and

(d) all supervised time shall be at the mother’s sole expense.

4. The matter be listed for mention on 7 October 2024.

Final Orders

5. The father have sole parental responsibility to make decision regarding the health and education of the children X born 2015, Y born 2017 and Z born 2020.

6. In the exercise of this parental responsibility:

(a) the father shall inform the mother of any proposal relating to the children or any of them by email to the mother’s nominated email address;

(b) if the mother wishes to comment on the father’s proposal, she shall respond to the father within seven days;

(c) upon receipt of any comment by the mother, the father shall give consideration to her views;

(d) after the father has considered the mother’s comments or seven days have passed without the mother responding to the father’s proposal, as the case may be, the father may make a decision and advise the mother by email to her nominated address as soon as practicable.

7. The father be permitted to provide a copy of the orders to any person necessary to give effect to the decisions made pursuant to Order 5 herein and these orders are to be taken as authorisation for the father to make that decision.

Living Arrangements

8. The children live with the paternal grandmother from the date of these orders until the completion of the spend time arrangements set out in Order 18 herein.

9. Following the completion of the time between the father and the children set out in Order 18 herein, the children live with the father.

Family Therapy

10. The paternal grandmother, father, and children attend upon Mr E or his nominee (“the family therapist”) at times as directed by the family therapist for the purposes of supporting and assisting the paternal grandmother and the children in re-establishing the children’s relationship with the father and transitioning the children into the father’s care.

11. The first appointment for the children with the family therapist is to occur on the earliest available date following the making of these orders.

12. All appointments involving the father, the paternal grandmother or any of the children and not the mother, shall be at the father’s sole expense.

13. In the event the family therapist invites the mother to participate in the family therapy, the mother is at liberty to attend, and shall meet the costs of any appointments in which she is the sole participant.

14. The mother and father shall share equally in the costs of any family therapy sessions in which the mother participates together with:

(a) the father; and/or

(b) the paternal grandmother; and/or

(c) any of the children.

15. The paternal grandmother and the father follow all lawful and reasonable directions of the family therapist regarding the attendance upon them for the appointments including making the children available to attend.

Provision of information to therapists

16. The father is at liberty to provide to the family therapist:

(a) a copy of these orders and Reasons for Judgment dated 1 July 2024;

(b) the Magellan Family Report dated 7 March 2024;

(c) the affidavits of Dr B;

(d) the letter of Police Officer F dated 28 February 2023; and

(e) the clarifying emails with Police Officer F dated 22 January 2024.

17. The mother is at liberty to provide a copy of the documents set out in Order 16 to any treating psychologist with whom she engages.

Children’s time with the father

18. Prior to the children living with the father pursuant to Order 9 herein, the children spend time with the father as follows:

(a) for a period of four weeks:

(i) on Tuesdays and Thursdays from 4.30 pm to 7.30 pm; and

(ii) Sundays from 12.00 pm to 4.00 pm;

(b) thereafter, for a further period of four weeks:

(i) on Tuesdays and Thursdays from 4.30 pm to 7.30 pm; and

(ii) from Saturday 10.00 am until Sunday 7.30 pm;

(c) thereafter, for a further period of four weeks:

(i) from Tuesday 10.00 am or at the conclusion of the school day until Thursday 7.30 pm; and

(ii) from Saturday 10.00 am until Sunday 7.30 pm;

(d) thereafter, for a further period of four weeks:

(i) from Tuesday 10.00 am or at the conclusion of the school day until Thursday 7.30 pm; and

(ii) from Friday 10.00 am or at the conclusion of the school day until Monday 10.00 am or at the commencement of the school day.

19. For the purpose of the children’s time with their father pursuant to Order 18:

(a) time pursuant to Orders 18(a), (b) and (c) shall be supervised by the paternal grandmother;

(b) time pursuant to Order 18(d) shall be unsupervised; and

(c) the children’s first period of supervised time pursuant to Order 18(a) shall commence after the completion of two family therapy sessions.

Restraints

20. The parties, by themselves, their servants and agents be and are hereby restrained from:

(a) denigrating the other party or any member of their family and/or household to the children or any of them or in the presence or the hearing of the children or any of them and shall not allow any other person to do so;

(b) discussing parenting disputes and/or issues, the intervention order proceedings or these proceedings with the children or any of them;

(c) contacting or communicating with the children save for as provided for in these orders;

(d) committing family violence or exposing the children or any of them to family violence;

(e) using physical discipline on the children or any of them; and

(f) consuming alcohol in excess in the presence of the children or any of them.

21. The mother be restrained from:

(a) removing or attempting to remove the children from the person whose care they are in pursuant to these orders; and

(b) from attending the children’s school unless the father has provided his prior written consent for her to do so.

22. The mother forthwith leave the Court building and precincts upon the pronunciation of these orders.

Other matters

23. The father and paternal grandmother complete the Tuning in to Kids Program as soon as practicable following the making of these orders.

24. Save for in the case of an emergency, the parties communicate with each other using the “Our Family Wizard” co-parenting application and to give effect to this Order, the parties each download and register an account with the application within seven days of the Order and thereafter maintain their registration at their own expense.

25. Each of the parties shall, as soon as practicable, advise and keep the other parties informed of:

(a) any serious illness or medical emergency involving the children or any of them whilst in their care including all details regarding the injury, illness, hospital location, medical practitioners and treatment required;

(b) any specialist medical practitioners or allied health professionals for which the children or any of them are attending upon; and

(c) their own contact details (or change of) including email addresses, residential addresses and mobile numbers.

26. Each party:

(a) authorise any school, day care or other educational institution attended by the children or any of them to discuss their progress with the other parties and to obtain copies of all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to parents; and

(b) authorise any medical practitioner or allied health professional attended upon by the children or any of them to communicate freely with the other parent and provide all information relating to that child’s care.

27. The parties be at liberty to provide a copy of these orders to the professional supervisor, and any medical practitioner, educational institution or extracurricular activity provider attended upon by the children or any of them.

AND THE COURT NOTES THAT:

A. The matters that remain on foot are:

(i) final determination of the children’s time with their mother; and

(ii) final determination of the parties’ respective s 79 of the Family Law Act 1975 (Cth) property claims.

B. Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow, I am satisfied:(a)the father does not pose an unacceptable risk to the children; (b)the children’s best interests will be met by orders that move them into their father’s care via the paternal grandmother, and supported by appropriate family therapy; and (c)it is premature to consider final orders for the mother’s time with the children. Regrettably, the matter will need to return to Court once the children have transitioned into their father’s care, and family therapy commenced. THE EVIDENCE The Mother The mother was not a compelling witness. Her recall of the children’s allegations, her conversations with them, what she reported to the police and when, was at times confused and at times contradictory. She was highly negative about the father and the paternal family, and unable to consider the children spending any time with their father, or any member of his family. The mother’s evidence at the outset of the hearing was that irrespective of the Court’s findings as to unacceptable risk, she would not make the children available to see their father under any circumstances – although towards the conclusion of her evidence she softened a little on that position. The mother maintained that by preventing time between the children and their father, she was acting protectively. In her oral evidence the mother confirmed her view that the father has absolutely nothing to offer the children “but lifelong trauma”.[1] She said there were no other possible explanations for the children’s statements to her, other than that they have all been subjected to sexual abuse, including penile-oral, penile-anal, and penile-vaginal penetration on multiple occasions over a number of months. [1] Transcript 6 February 2024, p.24 line 9. In his oral evidence Dr B said it was his view that the mother believed what the children said. However, he did not agree the mother could not conceive of a relationship between the father and the children. Having had the opportunity to hear the mother’s evidence at length it is apparent to me that she was unable to contemplate the children spending time with their father. She remained unable to articulate a position in the event the Court found the father did not present an unacceptable risk to the children.The Father The father was an impressive witness. He answered questions directly. He made sensible concessions. He did not criticise the mother. He acknowledged he showered with Y and that included lifting him up to clean him properly. He further acknowledged that as Y was four years old the father would have to wash his bottom, to make sure he was properly cleaned. The father denied showering with X and said she was old enough to attend to her own hygiene. He strenuously denied all allegations put to him regarding sexual abuse of the children. The father appeared to be very keen to re-establish his relationship with the children. He was able to reflect on the situation from the perspective of the children, and impressed as child focussed, and willing to work closely with appropriately qualified experts – at his expense – to support his reintroduction to the children. The material relied on

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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