TSOCAS & RILAK

[2015] FamCA 1239

FAMILY COURT OF AUSTRALIA

TSOCAS & RILAK [2015] FamCA 1239

FAMILY LAW – CHILDREN – BEST INTERESTS – INTERIM – Where the final hearing is part heard – Where various issues have occurred that require the proceedings to be adjourned – Where the mother and her legal representative left the court room despite being warned that the proceedings would continue in their absence – Where the father seeks interim orders to change the child’s residence – Where the Independent Children’s Lawyer supports the orders sought by the father – Where the mother is the primary caregiver – Where the mother alleges that the father has assaulted the child – Where there are concerns raised by the Single Expert psychiatrist as to the psychological risk to the child posed by the mother – Where the Court is reluctant to change the residence of the child on an interim basis without giving the mother a further opportunity to be heard  – Proceedings to hear the application to change the residence of the child to the father adjourned.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Tsocas

RESPONDENT: Ms Rilak

INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 22 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 22 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

Orders

IT IS ORDERED THAT:

1. Until further order, both parties are restrained from causing or permitting or arranging for the child B (female) born … 2010 (also known as … and …) to leave the Commonwealth of Australia.

1. The Court requests the assistance of the Marshal of the Court, all Officers of the Australian Federal Police and of the Police Forces of the States in the implementation of that order.

1. The Court requests that the Australian Federal Police facilitate the insertion of the child’s name on the Watch List at places of international departure from Australia and the child’s name.

IT IS FURTHER ORDERED THAT:

1. A copy of these orders be forwarded to the mother by the Registry at the address included in subpoena material provided by NSW Police.

1. If required, only the Marshal of the Family Court of Australia, the Australian Federal Police or NSW Police are to be provided with that address.

1. The proceedings are adjourned to 10.00 am on Tuesday 2 June 2015.

1. The mother attend personally on that date and deliver the child B to the Manager of Children’s Dispute Services by 9.45 am on that date to await further order of the Court.

1. The Court notes that the adjourned date is for the purposes of hearing and determining the Application for interim orders to change the residence of the child to that of the father.

1. As soon as practicable the solicitor for the father provide to the mother and to the Independent Children’s Lawyer in writing the terms of the orders sought by the father and that in any event that that document be provided to the mother by 6.00 pm on 27 May 2015.

1. The Court notes that if there is no appearance by or on behalf of the mother on the adjourned date the Application of the father may be heard and determined in her absence.

1. Until further order the mother is restrained from changing the residence of the child from her current residence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsocas & Rilak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 2062 of 2010

Mr Tsocas

Applicant

And

Ms Rilak

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings.  The proceedings were listed as to parenting and property and other financial matters in January of this year.  It became apparent that the hearing would not be concluded in the days fixed and the financial aspects were split off from the hearing, and arrangements were made with the parties to attempt to conclude the parenting aspect of the proceedings in that sitting.  On the last day, which I think might have been 30 January, I became indisposed and the hearing could not be concluded as to the parenting proceedings, in any event.

2. In my absence, the matter was listed before another judge and, with the cooperation of the parties, further days were fixed, being three days leading up to today, for the conclusion of the final hearing.  As it happened, I was on leave for the five weeks leading up to this week and out of the jurisdiction.  During the period between the January hearing and now, two significant things happened.  Firstly, at the end of March the mother reported that the child disclosed that the father had assaulted her. 

3. That ultimately led to an investigation by the joint investigative response team, (“JIRT”), an interim Apprehended Violence Order (“AVO”) and the interviews by JIRT and, ultimately, an indication from JIRT that no further proceedings would be taken.  As a result however, the mother filed a notice of risk of abuse and changed her application, seeking that in lieu of the orders that she had previously sought, that the child have no time with the father or only supervised time.

4. The other thing that happened was that my legal associate applied for and secured a job with the firm of solicitors representing the father.  I became aware of that when I returned to work this week.  When the hearing resumed on Wednesday, the parties indicated to me through their representatives – that the hearing again could not be concluded in the days fixed because of those issues.  The father was reinforced in his application that the child live with him, and the mother’s position had hardened in relation to the child living with her.  There was a great deal of additional material that the single expert had to get across and so on. 

5. Nevertheless, the hearing continued with evidence from another expert, some more evidence from the mother without concluding her cross-examination, and yesterday we commenced the evidence of the single expert psychiatrist, Dr C, after she had been qualified with the further updating material.  The import of the issue about my legal associate occurred to me yesterday, and I raised that with the parties in the morning, putting to the mother – who would be likely to be particularly concerned about it – notice of the problem.  I canvassed with the parties what I saw the issues to be without taking their submissions.  I said that I thought that, whatever the mother’s attitude, there would be a problem with me continuing with the proceedings if my legal associate commenced work for the father’s solicitors prior to the completion of the hearing.  I thought there was something to argue about in relation to that happening in the interregnum between reservation and judgment and I thought that there was no issue after judgment, on the basis that there would be no further exercise of judicial power available to me in the matter once that had happened. 

6. I invited the mother’s solicitor to take some time with her client and to consider her position.  On behalf of the father, it was said that it was not possible to get instructions from the firm, but some assurances were given about the limited contact between my legal associate and the firm, and certainly between my legal associate and anything to do with any cases in which the firm acts, let alone this one.

7. For the mother, this morning an application was filed seeking that, in any event, I disqualify myself and that, in any event, as I understood it, that Watts McCray cease to act for the father.  I suggested to the mother’s solicitor that we could continue with the evidence of the expert that had commenced yesterday and, by arrangement with the expert, was continuing today, and then that I would deal with those applications.  Ultimately, that was not acceptable to the point where earlier today the mother’s solicitor indicated that her instructions had been withdrawn.  I heard directly from the mother, and I again put that proposal to her.  She said that she wanted the hearing to cease, my disqualification to happen, the matter to be transferred to a judge in Wollongong – and there were some issues that I explained to her about that – and that Watts McCray cease to act.

8. I rejected that application and said that, as I had indicated before, I would first of all complete the evidence of the expert.  The situation with the hearing was that I had stopped things last night and offered the mother’s solicitor another 15 minutes today after she had had a chance to take instructions overnight, to complete the cross-examination of the expert on behalf of the mother, and then we would start with the father and the resumption of anything from the Independent Children’s Lawyer (“ICL”).  The mother, at that point, announced that she did not accept that ruling.  She and her solicitor left the courtroom.  I had explained to the mother before she left that if she chose to leave the courtroom the proceedings would continue in her absence.  Nevertheless she left the court.

9. Prior to lunch, however, the mother’s solicitor came back into the courtroom and sat in the back, apparently taking notes.  The mother did not come back.  The hearing resumed with cross-examination after lunch.  I called the mother and again she was not present.  There were then submissions on behalf of the ICL, to the effect that the ICL was supportive of the father’s interim application for a change of residence, effectively forthwith.

10. Submissions were made – which I will not go into at length because it is likely that that might be necessary again – on behalf of the father and on behalf of the ICL, as to the presenting risk to the child, who is five and a half, from the mother’s conduct – a risk identified and highlighted by Dr C in her 2014 report.  That was a risk in respect of which the doctor was reinforced on the basis of things she had seen and read subsequently about – particularly about the impact on the child and her relationship with her father, and her memories of her father, of her mother’s conduct.

11. It is a very concerning and problematic scenario that is presented.  Tracing back to the separation when the child was very young, there was 14 months when the mother did not facilitate the father having any time with his daughter.  There was closely supervised time on a very minimal basis – supervised by the mother, in the first instance, after that.  And then, upon orders being made, I think in the end of 2013, a parsimonious and patchy compliance with orders for day only time since then including, albeit that there was a couple of occasions of make-up time, many occasions when the child did not see the father.

12. There was the concern about the child having been interrogated by the mother that came to light in the first hearing.  The mother was warned about that at various points but that behaviour was repeated.  There was a course of conduct leading up to 28 March where the mother, as counsel for the father would have it, made an ultimatum:  “Pay me some money for petrol”, “Have the handover closer to my house or there will be no time”.  Whether that was an ultimatum or not is entirely irrelevant, but there is no doubt it was to be the mother’s way or the highway. 

13. The father did not receive a response to suggestions he made seeking to address some of the mother’s concerns.  That is, he suggested that he would do all the travel.  You can understand from the mother’s position, why she did not accept that proposal because it involved overnight time, but he did not have the courtesy of a response to that proposal.  The child was told something like she would not see the father again.  There was a suggestion in the father’s case that the mother deliberately made the child ill on the morning she was to be with him.  There is no probative evidence that would assist in resolving that issue, but there is no challenge to the father’s evidence that the child was ill on presentation when he collected the child that day.  It is an agreed fact that the child was ill when she returned to the mother.  The mother interrogated the child over two bathing sessions that night and there were disclosures about the father inserting a metal object in the child.

14. JIRT has not accepted that those disclosures are probative or would justify or support even a prima facie case to be put to an authority.  Dr C clearly considers that those disclosures are not probative or suggestive of abuse by the father.  Dr C was particularly critical of the processes of interrogation undertaken by the mother, not because of the damage done in a forensic sense –but because of the harm done to a child by repeated propositions being put to her.  The mother was counselled not to interrogate a child but she did so again almost immediately.

15. There is a background of concern in terms of the mother isolating the child from her peers.  She has not taken up Dr C’s suggestion about the child being at school this year.  In relation to her attendance at preschool, she required of the school authorities restrictive requirements in terms of the child having no access to a fruit bowl, no access to any party foods that were provided for any child’s birthday.  The effect of the mother’s life is very isolated.  She has daily communication with her family overseas but does not seem to take counsel from anybody else.

16. There is a suggestion in the evidence that I was not disabused about, from the mother or on behalf of the mother that she had not taken up or facilitated an inquiry by a general practitioner for testing at the request of an ENT specialist in respect of tonsillitis.  Dr C was particularly concerned about that because she said, if it contributed to disturbed sleep, and there is some evidence in the case that the child had sleep disturbance about that time in late 2013, then that could affect the child’s development.

17. There is a large issue in the case in relation to immunisation.  Whatever might be said about that, although I think I have heard all of the evidence about the issue but not the final submissions – the mother is certainly resistant to what I understand to be the mainstream view, not just in Australia but in North America – in the United States and Canada.

18. So we have a mother who has not uniformly or willingly or consistently or appropriately complied with Court orders; who has a view which seems to isolate the child; who takes her own counsel about some things that seem a little bit unusual, rather than a more orthodox approach to things; and it was quite concerning to hear the interrogation and see the interrogation of the child and the position the child was put in.  One point, for example, in the JIRT interviews:  the child was put to declaring that she had told a lie, in effect, to the JIRT officer by not saying that her brother was present when the father inserted the item in her vagina.

19. I think somebody will say to me that there is an inference that her mother told her to correct that piece of the record.  I cannot conceive of a situation of why the child would conceptualise that as a fib.  It is beyond belief.  Anyway, so they are the problems. 

20. The orders proposed on behalf of the child and on behalf of the father are a removal from her primary caregiver and – although there cannot be any detail about it – a restoration of some time with the mother, not immediately but perhaps within two weeks if that was practicable, and that thereafter that time be supervised.

21. The mother is, no doubt, the primary caregiver of this child.  The disqualification aspect of the case, even though the mother has not prosecuted her application, is of concern to me.  The mother has said a couple of times she could not get it out of her head and it is a complicated proposition.  She is a lay person.  She was represented when the problem arose but she terminated that relationship and the issues are quite sophisticated issues.  The issues, in a technical sense, are to do with a conflict in the duty of an officer of the Court, a solicitor.  Nevertheless, the mother, I think, sees it in a more colloquial way, in terms of secret access or something else.  You can understand that as a human response, and it is understandable that she was thrown to some extent by that proposition, even though, in the cold light of day, her conduct in relation to that issue was not sensible or rational.  I have some sympathy with her being thrown by the problem.

22. Dr C identified a risk.  She did not rank it in terms of competing risks, with the risks associated with the father, although I think Mr Levy invited her to embark on that exercise.  There are risks associated with the child being removed from the mother.  As Dr C said, there is the issue of the child making sense of such a step, particularly in the event that, at the end of the final hearing, the child is placed back with the mother.  In any event such a removal would be difficult for the child to understand and to be comfortable with the separation.  To the struggle that she has had to maintain her relationship with the father – we would add, on an interim basis, effectively undefended against the litigant in person – a potential significant countervailing risk to the child.

23. The other thing to say, as I have said during the course of submissions, is the child is basically well, as far as we know.  She has a loving and lovely relationship with her father.  We do not have a current report from the expert but, as Mr Levy pointed out, Interrelate has observed a nice interaction of relatively recent times between father and daughter and even, as he said, some reluctance in the child to go back to her mother.  Now, that may reflect better on the father than on the mother.  It may reflect better on the child than on either of the parents or it may suggest that, notwithstanding our fears and notwithstanding her presentation, perhaps the mother is not as driven and consistent in her interaction with the child in private, to destroy the child’s relationship with the father as appears from her conduct.

24. I am to make orders in the best interests of a child.  Like most urgent and important cases, this is about the primary considerations:  the need to protect a child from abuse and the importance of a meaningful relationship between a child and each of the parents, and that is the axis about which this interim matter turns.  The child’s wishes themselves are not of importance.  Dr C raised them in a way which reinforces to some extent my view today in that she said she would like to know how the child was, not in the sense of knowing what the child’s wishes were, but divining from the child’s attitude to the father whether there was now an anxiety about her being with the father, and that is a subtle matter.

25. Certainly, the child’s wishes are not relevant in themselves.  If the child is in harm’s way with her mother, it does not matter whether she wants to be with her mother or not.  If the child is safe with the father, it does not matter that she does not want to be there.  Dr C has introduced this concept and I must say I found her, as I have in the past, to be a very thoughtful and nuanced expert in terms of these issues. 

26. One is trading risks and I think the risk of what amounts to a pre-emptory removal from the primary caregiver without the final opportunity for the mother to be heard on these issues, it seems to me, outweighs the risks in terms of the further adverse conduct by the mother in relation to the child.  For those reasons, I will not today make any orders other than the ones that I have foreshadowed, subject to anything else that somebody wants to raise.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 May 2015.

Associate: 

Date:  17 October 2016