Thura & Kan

[2020] FCCA 3683

FEDERAL CIRCUIT COURT OF AUSTRALIA

Thura & Kan [2020] FCCA 3683

File number(s):	PAC 4747 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	6 November 2020
Catchwords:	FAMILY LAW – interim parenting – serious allegations of family violence – best interest of the child – mental health issues – child to live with the mother – child to spend time with the father in accordance with his wishes.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	24
Date of hearing:	6 November 2020
Place:	Parramatta
Counsel for the Applicant:	Dr Leslie of Counsel
Solicitors for the Applicant:	Rowlandson & Co Solicitors
Appearing for the Respondent:	Mr Buckley

ORDERS

PAC 4747 of 2020

BETWEEN:

MS THURA

Applicant

AND:

MR KAN

Respondent

AND

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	6 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The child X, born in 2007 (“the child”) shall live with the mother.

2.Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer is appointed for X, born in 2007 and request the Legal Aid Commission of NSW to provide such representation.

3.The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

4.The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

5.The parties do all things and sign all documents necessary to arrange for the preparation of a private family report (“the Family Report”) by Dr B of C Families (or other practitioner as agreed in writing between the parties), and in relation to the Family Report the following applies:

6.The cost of the Family Report be jointly met by the parties; and

7.Within 14 days of their appointment the Independent Children’s Lawyer circulate a draft of Terms of Reference for the Family Report, and within 7 days of receiving that draft, each party write to the ICL in relation to any amendments they seek to the Terms of Reference.

8.The Mother shall contact the Father in case of a medical emergency with respect to the child within 24 hours.

THE COURT ORDERS PEDNING FURTHER ORDER:

9.The child shall spend time with the Father in accordance with his wishes.

10.The Father be permitted to send the child cards, letters and gifts of no more than once per fortnight to a Post Office Box (“PO Box”) to be opened by the Mother within 7 days. For the purposes of this Order, the Mother is to provide to the Father the PO Box address within 48 hours of opening the PO Box.

11.Pursuant to Section 68B of the Family Law Act 1975, the Father be restrained by injunction from attending any place that the child or the Mother reside at, work at or attend for educational purposes or come within 100m of such place.

12.Pursuant to Section 68B of the Family Law Act 1975, the Father be restrained by injunction from contacting the child or the Mother, unless such contact is pursuant to these Orders or through a lawyer.

13.Leave is granted to the Independent Children’s Lawyer and the parties to seek to have the matter restored to the list on 7 days’ notice.

14.The matter is to be listed after the release of the Family Report.

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 under a pseudonym Thura & Kan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1. These are short-form reasons pursuant to the Family Law Act 1975 (Cth) (“Act”).

2. Before me today is an application for parenting between the applicant and the respondent in relation to their child, X, who was born in 2007, meaning that he has recently turned 13 years old. 

3. I have had the benefit of extensive submissions from both the applicant and the respondent through their legal representatives:  not only oral submissions today but also the submissions made in each of the parties’ respective case outline documents.  I have read the material which the parties rely upon in these proceedings.  That is, their affidavits, together with exhibit 1, and I have had regard only to the relevant matters contained in those affidavits.  That is, the matters that are relevant to the parenting dispute, as opposed to the property dispute, which is also before the Court but not today. 

4. The mother raises some very, very serious allegations of family violence in her material.  Those are set out in quite some detail in the chronology which forms part of her case outline document and include sexual abuse, financial abuse, and emotional abuse of her. The allegations also include abuse of the children, or physical violence towards the children, in circumstances where the children were subjected to observing the father’s behaviour towards the mother. 

5. The father denies all of the allegations of family violence, sexual violence, physical violence, verbal violence, etcetera.  Indeed, the father comes to this Court and says that the only reason why X is behaving the way that he is and why he is saying the things that he is is because of the influence that the mother has had on him.  That, in one sense, is an extraordinary statement to be making in circumstances where the children had lived primarily with the father for a period of some three years, up until April this year, while the mother was living and working in Country D and only travelling to Australia to spend time with the family every few months or so. 

6. The material which finds its way into exhibit 1 is concerning, in terms of what the parties’ children, one of whom is an adult now, are said to have been subjected to or are said to have experienced during the times that they have lived predominantly with their father and also prior to that when the parties were living in the same house.  The children had been living with the father for the last three years while the mother was overseas.

7. The parties did separate, with the mother deciding that she was going to stay in Country D and work while the father returned with the children to Australia so that Ms H (the parties’ now adult child) could attend university, continue her education, and for X to continue being educated in Australia. 

8. What is of particular concern to the Court, without the Court being able to make any findings of fact, are the counselling notes contained in exhibit 1 and the matters which X has apparently disclosed to his counsellor.  According to the notes produced from E Centre, which are at pages 20 to 23 of exhibit 1, X has disclosed things such as the following on 7 August 2020, which was a session that was attended by the child, the mother and the counsellor:

   ·He spoke about living with his sister and mum.  He says that he feels safe while living with them and he knows that they care about him. 

   ·He spoke briefly about sometimes having negative thoughts.  He does not want to keep having those thoughts. 

9. It appears that this was the first session when the child was brought to E Centre and shown around and it was explained to him what E Centre was and what the services were that it provided.

10. Thereafter, the counselling notes indicate that during the counselling sessions, which occurred via audio-visual platform, it was only X and the counsellor who were present.  During those sessions, for example:

    (a)On 17 August 2020: 

    X once again spoke about his negative thoughts, particularly about hurting someone.  He has never acted on his thoughts.  He said that he is worried that he will become like his dad and that his dad does not care and that he was mean.  X said that he remembered times when his dad would threaten to drive him into a tree and kill them all.  He said that his dad often threatened to harm them:  his sister and his mum.  X said that he is scared of his dad. 

    (b)On 25 October 2020: 

    X spoke about when he used to live with his dad.  He said that he often felt uncomfortable and worried at home, that he would leave home early and come back late so that he would not have to spend too much time at home, and he said that it was his sister, Ms H, who essentially looked after him. 

    (c)On 3 September 2020: 

    He said that on several occasions he walked in on his dad while his dad was watching pornography.  He said that there were also times when he was asleep and his dad was nearby and X could hear his dad watching pornography, although one wonders, if the child was asleep, how he could hear anything that was going on.  Presumably, the sounds woke him up. 

    (d)On 18 September 2020: 

    X said that he is aware that there will be a Court matter. 

    (e)13 October: 

    X spoke about when he was living with his dad and that his dad told him that he did not really like Ms H and that he wanted her to kill herself. 

11. It is unclear why the child is aware that there are Court proceedings on foot but, in any event, the counselling notes from that day indicate that he still feels comfortable going to his mum and talking to her about his needs and that he finds his mother helpful and reassuring.

12. Those are just some of the counselling notes. 

13. Part of exhibit 1 is a report from Dr F to Dr G, dated 18 May 2020, Dr G being a general practitioner who referred X to see Dr F, who is a consultant psychiatrist. 

14. To Dr F, it appears that X has disclosed some of his concerns or some of the concerns that he has had, importantly for the purposes of my determination today. That report notes that X feels somewhat relieved to be out of direct contact with his dad.  He says that he would feel safer if he knew that his father had been served with an AVO to prevent anymore contact between them.  He said that his father contacts him with promises or threats. 

15. There is other evidence in exhibit 1 which I will not refer to directly but, certainly, which has been considered.  The Court’s primary concern is to ensure that whatever orders are made, that they are in the children’s best interest and that by the making of the orders, the child is not placed at an unacceptable risk of harm.  There is significant material before the Court which would indicate that time between the child and the father, other than in accordance with, perhaps, some expert guidance or through a family therapist, would, at present, unlikely be in X’s best interest. 

16. The Court’s hands are relatively tied at the interim stage of the proceedings, given that there are significantly contested facts and that the parties’ positions are polar opposites in terms of the stories that each of them tells as to their life together. 

17. The father says that the mother was the aggressor during the parties’ relationship, that she was abusive towards him and that the reason, as I have already indicated, why X is feeling the way that he is, is because of the influence that the mother has had. 

18. The mother says that the reason why she remained in Country D and permitted the children to return to Australia with the father, are complex. This was one of the concerns that the Court raised with the parties on earlier occasions. That is, the Court had concerns that the mother had not acted protectively towards the children previously in circumstances where the allegations that the mother makes predate the children returning to Australia to live with the father.  No doubt, those will be matters for further evidence. 

19. The parties agree that there should be an independent children's lawyer appointed and that there should be an expert’s report provided by Dr B, and the parties agree that the children should live with the mother on an interim basis.  Certainly, those are the orders that I will be making today by consent. 

20. I am not satisfied on the evidence before me that the orders sought by the father for either supervised time or time on alternate weekends are in X’s best interest.  It may be that such time is to occur after there is a further short period of counselling or some other further intervention. 

21. Certainly, it is the Court’s view that the child would benefit from the father and the child engaging in some family therapy if that is a recommendation that is made by the child’s counsellor, but for present purposes, and, at present, it is in X’s best interest that he only spend time with the father in accordance with his best wishes. 

22. He is a child who is mature by all accounts and from reading all of the reports in exhibit 1 and, no doubt, both the parents agree, that he is an articulate, incredibly intelligent young man who will be able to express his wishes.  The Court certainly has confidence in that. 

23. I am not satisfied that there is a need, in terms of the child’s best interests, for there to be an order for parental responsibility at present and I am satisfied that the statutory position is appropriate to remain until such time as when an order for sole parental responsibility is made. 

24. Noting that the father is not prepared to provide any undertaking that he will not attend any place where the mother or the child reside, where they work or attend school, given the serious matters which are contained in exhibit 1 and the serious allegations which the mother makes, the Court, taking a cautious approach, considers that a restraint is, at present, in X’s best interest and it is an order that is appropriate for the protection of the mother.  I, therefore, make the following orders. 

25          I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       6 November 2020