Uzunlar & Uzunlar

[2022] FedCFamC1F 256

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Uzunlar & Uzunlar [2022] FedCFamC1F 256

File number(s):	SYC 7473 of 2016
Judgment of:	SCHONELL J
Date of judgment:	1 April 2022
Catchwords:	FAMILY LAW – PARENTING – Where both parties sought to vary interim orders – Where the mother sought to resume time with the children which she said should progress to unsupervised time – Where the father sought to discharge the orders and ensure that therapy take place – Where there are allegations of risk – Where there is non-compliance with Court orders – Where the parties sought further parenting orders – Where the primary and additional considerations in s 60CC of the Family Law Act 1975 (Cth) were considered – Where the orders were varied but not to the extent sought by each of the parties.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL
Division:	Division 1 First Instance
Number of paragraphs:	50
Date of hearing:	1 April 2022
Place:	Sydney
Counsel for the Applicant:	Mr Fowler
Solicitor for the Applicant:	Concordia Legal
Counsel for the Respondent:	Ms Cantrall
Solicitor for the Respondent:	Zraika Partners Lawyers
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Sydney Central Family Law

ORDERS

SYC 7473 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS UZUNLAR Applicant
AND:	MR UZUNLAR Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	1 APRIL 2022

THE COURT ORDERS THAT:

1.The Orders made 10 December 2021 shall be varied as follows:

(a)Order 3(a) will be varied by removing the words at the commencement of the Order “Subject to Order 5,” as set out hereunder:

3.        The children spend time with the mother as follows:

a.   Subject to Order 5, For 4 sessions of four hours each week on a day to be nominated by the parties and in the absence of agreement between the parties, each Saturday from 11am to 3pm.

(b)Order 5, as set out hereunder, is discharged:

5.Time pursuant to Order 3 shall commence on the first weekend following the therapist nominated pursuant to Orders 6 and 9 conducting initial individual sessions with each parent, the children and a joint session between the mother and the children or otherwise not later than 10 weeks from the date of these orders, subject to the parties giving due consideration to any recommendations by the therapist as to timing.

2.By consent, Orders are made in accordance with a document marked as Exhibit “A” of today’s date, as set out hereunder:

[1.]If the children are to spend supervised time with the mother on a weekend and the agreed supervising agency (presently S Centre) are unable to provide supervision at the time or on the day the time is to take place, then the time shall take place commencing at a different time, or on a different day of that weekend, as nominated by the supervising agency.

3.Orders are made in accordance with paragraphs (a) and (b) (as amended) of a document marked as Exhibit “B” of today’s date, as set out hereunder:

a.The mother and the children may communicate with each other through the children’s mobile telephones, other than while the children are in school and not later than 8.00 pm in circumstances where the children telephone or text the mother.

b.The father shall afford the children privacy in their communication with the mother.

4.The Orders of 10 December 2021 and these Orders be explained by the Independent Children’s Lawyer to the children.

5.Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto 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).

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 Uzunlar & Uzunlar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

SCHONELL J:

1. These are parenting proceedings brought by each of the parties seeking to vary interim orders made 10 December 2021. The orders made on that occasion arise in the backdrop of a highly conflictual parenting proceedings between the mother and father in relation to the care of their two children, aged 11 and 12 years.

2. The proceedings are assigned to the docket of Rees J and are next before her Honour on 29 April 2022. Orders made on 4 March 2022 by her Honour indicate that on the next occasion, the Court is likely to allocate final trial hearing dates to place in June 2022.

3. The proceedings come before me to address the issue raised by the application and responses of each of the parties. This is an interim hearing and there has been no cross-examination. By virtue of that, 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.

4. The mother seeks orders in her application, summarised by me effectively, seeking to resume time between herself and the children for a couple of occasions, and then to move to time on an unsupervised basis.

5. The father seeks orders in his Response, again summarised by me, seeking to discharge the existing orders and to ensure that a form of therapy takes place between the children and each of the parents.

6. The Independent Children’s Lawyer (“ICL”) submits that there has not been established a change in circumstances sufficient to warrant varying the orders. The ICL in her comprehensive Case Outline, points to matters that she says goes to establish that there has not been a change of circumstances.

7. The background would appear to be that the children had, as a consequence of orders made on 2 March 2017, remained in the primary care of the mother and spent time with the father in school terms and in school holidays. In May 2021, the father did not return the children to the mother, asserting that the children were at risk in the care of the mother.

8. An ADVO was subsequently taken for the protection of the children. The mother denies that she has done anything that would pose a risk of harm to the children.

9. I accept, however, that there are allegations of risk, including allegations of self-harming behaviour.

10. As stated earlier, I cannot in these proceedings resolve the contested factual issues. The factual issues are many and include the behaviour of the parties over the course of time during their separation and subsequently.

11. It is undisputed that the mother has not spent any time with the children since May 2021. The reasons as to why that is will no doubt be explored at the final hearing.

12. An updated Family Report was prepared pursuant to orders made 18 May 2021. That Report dated 9 November 2021 records a number of significant matters:

    47. B stated that she does not live with her mother anymore, and now lives with her father. B said that she last saw her mother on “photo day” (the day school photographs were taken), and has not spoken to her at all. When asked who was making the rules about who she lived with at the moment, B stated that it is “me and C”.

    …

    51. When asked to describe her mother, B paused and said “I don't know”. She identified that her mother used to get her “slushies”, but stated that all her memories of her mother are of her mother “yelling at me” and smacking C in the car. B indicated that it was difficult for her to recall nice things about her mother, but stated “she is my Mum, I love her”. B was advised of the description she gave of her mother when she was interviewed in 2020 and was asked if she remembers having positive feelings for her mother and she said “yeah, I guess, a bit”. When asked if she still holds positive feelings or if those feelings have significantly changed, B indicated that her feelings changed in 2021 because her mother was yelling at her more and, when she (B) asked for help, her mother said no. B seems to perceive that her mother did not organise therapy for her because her mother thought that it (B seeing a therapist) would not help her (Ms Uzunlar’s) case in court.

    …

    57.B stated that she wants to live with her father. She said, “obviously” she would want time with her mother as well, perhaps a day or two days, slowly building it up. She said that, at the moment, she just wants time with her father as “I need my space”. B seemed unsure as to what time she might like to spend with her mother, stating again “I obviously want to see my Mum, but I don't know when”. B indicated that she would be worried about seeing her mother, because she predicts that her mother will yell at her, and that there will be no one in the home to protect her. She identified that, perhaps her maternal grandparents would be present in the home and that they may be protective of her, but she seems to have felt let down and abandoned by her maternal grandfather during a previous incident with her mother when she perceived that her grandfather agreed to take her to her father's home, but then did not.

    …

    67. When asked if he has any positive memories of his mother, C said that he did not remember, but she did take him to see his friends. When advised that, in 2020, he had described his mother as funny and caring, C said “I don’t remember saying that”, but he said he “kind of” feels that.

    …

    71. C indicated that living with his father “full time” would be “good”, because “I’ll be more safe”. When asked about the possibility of spending time with his mother, C said that he does not really want to spend time with her. C acknowledged that he is worried about seeing his mother because he recalls her “getting angry at me all the time”, hitting him, slapping him, pushing him to the couch and throwing bags at him. C indicated that, if he were to have a relationship with his mother and feel safe, his mother would have to “stop hitting me and being mean”.

    …

    76. Notes from R Hospital indicate that B was assessed as being at low risk of self-harm and suicide on 6 May 2021. She was discharged home with her father and safety planning was discussed with Mr Uzunlar, including a plan for ongoing counselling.  

    …

    86. Whilst it is possible that the children's perceptions of their mother may have been influenced by their father (discussed below), it seems quite apparent that the children have been emotionally harmed by their mother's behaviour. It is also quite apparent that Ms Uzunlar is unable to recognise or acknowledge this, which indicates that there will be ongoing risk of such harmful behaviour continuing. Ms Uzunlar seemed unable to reflect on the possibility that the children have perceived her to be angry at them and unsupportive of their relationships with their father. Whilst she displayed remorse for the children experiencing the ongoing dispute and acrimony between their parents, she was steadfast in her resolve that she has not behaved in any way that she would need to apologise to the children for. Whilst Ms Uzunlar indicated an intention to be loving and caring toward the children without any resentment for the statements they have made, Ms Uzunlar appears to be quite rigid in her thinking with regard to how she might communicate with the children about what has happened. She believes Mr Uzunlar has somehow influenced them to make statements about her behaviour, and there seems to be a risk that she will convey this belief to the children, thereby undermining their reality and drawing them further into the conflict between their parents.

    …

    89. Mr Uzunlar has always presented himself as a committed, dedicated and competent father, and he has been assessed as being capable of meeting the children's needs. During previous assessments, he portrayed himself as being a victim of Ms Uzunlar’s control and claimed that Ms Uzunlar was alienating him from the children and not allowing him to fulfil his parenting role. It seems that, now, Mr Uzunlar is in complete control of the parenting arrangements. This may be motivated by a desire to protect the children from harm, however there is some concern that it may also be motivated by a desire to obtain the control that he has long felt he has been unjustly denied.

    …

    92. Mr Uzunlar most certainly loves B and C and wants to protect them and ensure their needs are met. He portrays his decision to retain the children as having been in response to their requests. However, there are two concerns regarding his attitude. Firstly, his portrayal of himself as being alienated from the children by Ms Uzunlar, despite him having meaningful relationships with the children and despite Ms Uzunlar complying with the interim orders for the children to spend substantial and significant time with him, is likely to have had an influence on the children's perceptions over time. Whilst the children may have had their own perceptions of their mother's attitude toward their father, these would have been reinforced by Mr Uzunlar’s beliefs about Ms Uzunlar’s attitude toward him. Secondly, Mr Uzunlar seems to continue to hold a high level of hostility toward Ms Uzunlar in relation to her living in the family home. This hostility developed initially in response to Ms Uzunlar’s actions when commencing these court proceedings in 2016, but is still apparent.

    93. Mr Uzunlar reports wanting to support the children to re-establish relationships with their mother, and he has put forward a range of interventions and conditions he considers necessary in order for the children to be safe if they were to spend time with Ms Uzunlar. Most of these ideas seem reasonable and appropriate and a valid attempt to address the issues and repair the relationships. There is some concern that Mr Uzunlar has been unable to ensure that the children have some form of communication with their mother, however, the existence of the AVO, and the reported possibility of the children having to give evidence at a defended hearing for the A VO, may make this understandable. Mr Uzunlar appears to have an understanding that their needs to be repair of the children's relationships with their mother, and that Ms Uzunlar may need to make changes to her behaviour with the children in order for this repair to occur.

    …

    97. Both children's current views are significantly different to their previous views, with them both now wanting to remain living with their father. B appears to be conflicted about her relationship with her mother and about what she would like to do in the future in terms of spending time with her mother. It seems that she wants to spend time with her mother, but she is extremely worried about how her mother is going to behave in response to her (B) having made the statements she has about her mother and having, in effect, decided to live with her father. C did not indicate any desire to spend time with his mother, however this seemed to be directly related to his concern about how she might behave toward him, with him being worried that she will continue to be angry, yell and hit him. B made spontaneous statements that she loves her mother, but it is of some concern that both B and C seemed unable to recall positive elements of their relationships with their mother, which they had previously described in detail.

    98. This may be due to the overwhelming impact of their experiences of their mother as being angry and abusive on their overall memories of their mother. It may also be a result of the focus of conversations about their mother having been steered toward their negative experiences of her, both in the context of professional assessments/interventions and interactions with their father. There is some concern that there may be some influence from Mr Uzunlar as well, possibly intentional, but possibly unintentional, with the messaging from him being that he is protecting them from their abusive mother. Whilst Mr Uzunlar still claims that Ms Uzunlar was alienating him, there was never any indication of that in the children's presentation during previous assessments. It is the current presentation of the children being unable to spontaneously recall positive memories of their mother that is indicative of him potentially alienating Ms Uzunlar from the children.

    99. Whatever has led to the children's current perceptions, it is not considered psychologically healthy for the children to hold such negative perceptions and fear of their mother, when it is apparent that, previously, they have had positive relationships with her. This kind of splitting and rejecting of a parent in the context of a family law dispute can lead to mental health problems for children. B and C need to be able to experience the positive elements of their relationships with each of their parents and to be able to integrate those experiences into their lives, including being able to discuss their relationship with each parent with the other parent. The children also need to have their parents address any elements of their parenting behaviour that has caused the children to perceive them negatively or fear them.

    …

    105. In the interim, it is considered that the children should commence spending time with their mother. Given Ms Uzunlar’s presentation, supervision may be needed to protect the children from experiencing emotional pressure and the potential undermining of their reality by their mother, who may be inclined to tell them their claims are false. Prior to any time commencing, it would be ideal if a professional child and family therapist could conduct some sessions with each parent, the children, and then some joint sessions with Ms Uzunlar and the children, assisting them to repair the damage to their relationships, which may be dependent on Ms Uzunlar addressing some of her behaviour.

    …

    RECOMMENDATIONS

    110. It is recommended that the Court determine which parent should hold sole parental responsibility.

    111. It is recommended that the Court determine which parent the children should live with.

    112. It is recommended that, in the interim, the parents engage a child and family therapist to conduct sessions with each of them, and then joint sessions with Ms Uzunlar and the children. It is recommended that such therapist be provided a copy of this report, as well as a copy of the update Family Report from 2020.

    113. It is recommended that, in the interim, the children spend time with their mother, potentially with supervision.

    114. Both parents are likely to benefit from individual therapeutic interventions which can provide them with emotional support and practical parenting advice, including managing their own feelings of anger/hostility.

13. That Report was provided to the parties and was before the Court on 10 December 2021, when there was a hearing before the senior registrar.

1. I am told that on that occasion it was an agreed position between the parties that orders should be made that the mother’s time be supervised, and orders were ultimately made by the senior registrar that provided for the children to live with the father, for him to have sole parental responsibility, and that there were orders made for the mother to spend time with the children, paraphrasing the orders, on four occasions for four hours each week on a Saturday, then increasing to five hours each week on a Saturday, again all such time was to be supervised.

2. There was an order that provided also for the mother’s time to commence, it would appear, following the nomination of a therapist.

3. The form of what is described as Order 5 in the reasons has bewildered the parties.

4. It is undisputed that there has been no review filed by either party to the orders made by the senior registrar. I presume from that fact that the parties were content with the orders as made until they filed their competing application and response.

5. The clear intent of Order 3 was that the time with the mother would resume as supervised by a professional agency immediately. On one view, perhaps as a consequence of infelicitous drafting, Order 5 has caused the parties some difficulties such that they have been unable to agree as to its interpretation. It is more likely the function of the entrenched position of the parties that has led to this problem.

6. Before me today, the mother submits that time should resume immediately and that it should progress to unsupervised time, as well as there being make up time between the children and their mother.

7. The father supports time between the mother and the children, however, he contends that it should occur through the prism of therapy, and that the existing orders for supervision should be discharged. His counsel points to the Family Report and the Report from Dr P, as well as a statement by Dr P referred to in the father's affidavit as support for his position. The father says that supervised time was attempted on 26 March 2022, but the youngest child would not leave the motor vehicle. The father in his affidavit identifies that he attended upon Dr P and refers to Dr P telling him on 15 February 2022, in a conversation to this effect “I certainly don't agree that supervised visits should commence without family therapy” (at paragraph 24).

8. Dr P prepared a Report dated 3 March 2022. Her Report records a number of matters in relation the parties and the children, but does not contain the assertion the father reports he was informed about on 15 February 2022. As I said earlier, I cannot make any finding about any of the matters that are in dispute in these proceedings.

9. It is clear from Dr P’ report that she records on page three of the report:

   … Both children said they wished to live with their father. B recounted occasions where her mother had yelled and sworn at her but said that Ms Uzunlar was abusive to C more frequently and described Ms Uzunlar slapping C on the face, pinching him and swearing at him.

10. Under the heading ‘capacity of parents to accept treatment’, it remarkably records the following:

    Both parents were open to support for the children in re-establishing their relationships with their mother. …

11. Under the heading of ‘parenting capacity’, it records:

    … The primary issue raised by the children and Mr Uzunlar appears to be in relation to Ms Uzunlar’s experiencing some emotional regulation difficulties. …

12. On page 4 of the report, it records:

    … [B] is open to therapeutic support to re-establish her relationship with her mother.

    C is very concerned about being reunited with his mother as he is worried, she will be angry with him for leaving. 

13. Under the heading of ‘type of treatment’, it records:

    A Family Therapy model would be very beneficial for this family to assist with parental communication, the arrangements for the children, gradually re-establishing the children's relationships with their mother in a safe and supported setting.

14. The report, as I said, does not contain the recommendation that there should not be supervised time

15. On 8 March 2022, the father’s solicitor sent a letter to the mother’s solicitor. That letter is attached to the father's affidavit at pages 37 and 38. There is much that could be said about the form of this letter. I am particularly concerned, however, that it contains the following paragraph:

    If however your client remains unmoved by the above, and happens to secure a Saturday for visitation with S Centre, our client will agree to bring the children to the visitation venue, however on the condition that your client agrees to provide an undertaking as to the following:

    It then enumerates six undertakings that the father sought.

16. It is not for the father or his solicitor to dictate terms or impose conditions in the face of Court orders. What that letter demonstrates is that the father did not, on either 8 March 2022 or 26 March 2022, think that the time should occur only in the context of therapy.

17. I am troubled in this case that 11 and 12 year old's are making decisions, which they are not mature enough to make.

18. Court orders are to be complied with. It is not for parents or children to view compliance as optional or for them to impose conditions on compliance. My concern about this arises in two contexts. In the Report of Dr Q, at paragraph 47, she records the following:

    47. B stated that she does not live with her mother anymore, and now lives with her father. B said that she last saw her mother on “photo day” (the day school photographs were taken), and has not spoken to her at all. When asked who was making the rules about who she lived with at the moment, B stated that it is “me and C”.

19. The S Centre Report on the occasion of 26 March 2022, records a conversation between the father and the supervisor. The father agreed, through his counsel, that the conversation occurred. He just indicated that it did not occur at the commencement of the time. The conversation records the following at paragraph 11:

    11.I said to the Father, “You need to encourage him.” The Father replied, “I already did, that's how I got him here. I am already a bad guy in his eyes for forcing him to come here. I told him to go for at least an hour or so and if he doesn't want to he can come back earlier.” …

20. It is not for the father to vary unilaterally Court orders that are made by this Court.

21. I am asked to make further parenting orders by each party.

22. Parenting proceedings are governed by Pt VII of the Act. Section 60CA of the Act provides that the Court is 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, which outlines the primary and additional considerations the Court is required to take into account.

23. In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection.

24. I note that both parents consider it important that the children have a meaningful relationship with the other parent. They seem intractably opposed as to how that should occur.

25. As I stated, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit to the child of having a meaningful relationship with both parents. I accept that there are risks highlighted in the material, particularly that of the Report of Dr Q. I cannot ignore those risks, and I need to act cautiously and craft orders that address the question of risk.

26. In determining what is in the best interest of the child, I will now consider the additional considerations so far as they are relevant. The father placed significant weight on the children's views. The children, however, are 11 and 12, and I have earlier referred to their views. The evidence does not permit me to make any findings about the extent to which each of the parents has taken or failed to take an opportunity to participate in making decisions about long-term issues. I imagine this will be the focus of the hearing before her Honour Rees J.

27. It is not intended by either party's orders that there would be a separation of the children from either parent. Even the orders that the father proposes would have the children see their mother at some indeterminate time in the future

28. I note that there is no practical difficulty or expense to the children spending time with the other parent.

29. I have significant concerns about the insights of each of the parents and the report of Dr Q highlights those difficulties, which I have referred to earlier.

    CONCLUSION

30. I am not satisfied that there are sufficient changed circumstances that warrant variation of the orders to the extent suggested by either party. At this stage, it is premature to consider unsupervised time in circumstances where supervised time has not even commenced.

31. A court will in due course assess the parties competing assertions as to risk and attitudes to parenting at the final hearing. The focus of that hearing may very well be on the conduct of the parties in the last 12 months, and the capacity of both parties to comply with orders and to ensure that the children have a meaningful relationship with both of their parents.

32. As I remarked earlier, 11 and 12 year olds do not determine when they see their parents. I consider, consistent with the recommendations in the report of Dr Q, that time with the mother should re-commence and it should re-commence immediately.

33. I am not confident that the father's proposal has any prospects of restoring time with their mother in sufficient time to ensure that their relationship has re-commenced before the hearing before Rees J. There is no evidence before me as to when that time would occur. This Court should not defer its responsibility as to time arrangements between a parent and a child to a therapist.

34. I perceive Order 5 is an impediment to time resuming and propose to discharge it, as well as make a variation to Order 3. I regard it as appropriate that time is to take place on a Sunday, assuming it cannot proceed on a Saturday. I also think it important that the children speak with their mother if they contact her by telephone, and I will make orders to that effect.

35. Accordingly, I make the following orders. The orders made 10 December 2021 shall be varied as follows: Order 3(a) will be varied by removing the words at the commencement of the order “subject to Order 5”, and I discharge Order 5 of the orders made 10 December 2021.

36. By consent, I make orders in accordance with the document that I mark as Exhibit A, which will provide for the children to spend time with their mother on a Saturday or a Sunday. I think it is appropriate that an order be made for telephone time between the children. I make orders in accordance with the document I mark as Exhibit B in the proceedings but, I amend that order to ensure that it is abundantly clear that the mother’s ability to communicate with children by telephone arises in the context of the children telephoning the mother, and so I will add to the document marked “B” at the end, the words ‘in circumstances where the children telephone or text the mother’.

37. I think it is imperative that my orders and the orders of 10 December 2021 be explained by the ICL to the children and I thank her for arranging that. It is important that these children understand that it is the desire of both of their mother and their father that they see their mother. It is also important that it is explained to them that it will occur in a supervised setting, which should provide a measure of comfort to the children, and lastly it should be imparted to the children that they do not get to say whether they go on time with their mother.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       1 April 2022