Veda & Harendra

Case [2024] FedCFamC1F 846

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Veda & Harendra [2024] FedCFamC1F 846

File number: SYC 3939 of 2022
Judgment of: CHRISTIE J
Date of judgment: 9 December 2024
Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where the children have been exposed to parental conflict and family violence – Where younger child is experiencing school refusal – Where older child has rejected maternal family – Where Court finds father poses a psychological risk of harm to children – Children to live with mother and spend supervised time with father graduating upon condition to unsupervised time – Injunctions granted.
Legislation: Family Law Act 1975 (Cth) ss 4AB(2), 60B(b), 60CC(2)(a), 60CC(2)(b), 60CC(2)(c), 60CC(2)(d), 60CC(2)(e), 61B and 68B
Cases cited:

H v K [2001] FamCA 687

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

Slater v Light (2013) 48 FamLR 573; [2013] FamCAFC 4

Division: Division 1 First Instance
Number of paragraphs: 200
Date of hearing: 4–8 November & 11–14 November 2024
Counsel for the Applicant: Ms Dart
Solicitor for the Applicant: Rubin Blight Hardy Family Lawyers & Mediators
Counsel for the Respondent: Mr Coleman SC with Mr Alexander
Solicitor for the Respondent: Rita Thakur & Associates
Counsel for the Independent Children's Lawyer: Ms Rebehy
Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers

ORDERS

SYC 3939 of 2022

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

MS VEDA

Applicant
AND:

MR HARENDRA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

9 DECEMBER 2024

THE COURT ORDERS THAT:

1.The mother shall have sole long-term decision-making responsibility for the children, X born in 2010 and Y born in 2013 (“the children”).

2.The children shall live with the mother.

3.The children shall spend time with the father as follows:

(a)Commencing on the second Sunday after the making of these Orders:

(i)Each alternate Sunday from 10.00 am until 4.00 pm;

(ii)On Father’s Day from 10.00 am until 4.00 pm;

(iii)On the father’s birthday from 3.00 pm until 8.00 pm;

(iv)In odd numbered years, the father is to spend time with the children on each of their birthdays from 3.00 pm until 8.00 pm;

(v)The children’s time shall be suspended on Mother’s Day and the father shall have time with the children on another Sunday as agreed between the parties;

(vi)At other time as agreed between the parties in writing.

4.From the date of these Orders until Y’s birthday in 2026, the children’s time with the father pursuant to these Orders is to be supervised by a professional supervision service as agreed between the parties and if no arrangement is reached then G Contact Service and:

(a)The father shall be responsible for the costs of supervision;

(b)The parties shall follow the directions and terms of the supervision service;

(c)The paternal family are at liberty to attend the supervised visits; and

(d)The mother is at liberty to obtain a written report from the supervision service at the mother’s cost.

5.In the event that the father speaks…

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Veda & Harendra [2024] FedCFamC1F 846
Case
[2024] FedCFamC1F 846
Decision Date

CaseChat Overview and Summary

The case before Christie J in the Federal Circuit and Family Court of Australia involved a dispute between Ms Veda and Mr Harendra concerning the final parenting arrangements for their two children, X and Y. The primary issue before the court was determining the best living arrangements and contact schedule for the children, considering the history of family violence, parental conflict, and the children's emotional and psychological well-being. The court also had to decide on the level of supervision required for the children's time with the father and whether there were circumstances justifying indefinite supervision.

Christie J found that the children had been exposed to family violence and parental conflict, particularly from the father’s actions, which had negatively impacted their relationships with both parents. The court was concerned that the father’s behaviour, including deriding the mother in the children's presence, had contributed to the children's rejection of her. The mother was found to be committed to the children's well-being and had taken steps to address their psychological needs. Given these circumstances, the court concluded that the children's best interests would be served by having the children live primarily with the mother while spending supervised time with the father. The supervision was intended to protect the children from psychological harm and to prevent the father from undermining the mother’s authority.

The court ordered that the children live with the mother, with the father having supervised contact initially, which would transition to unsupervised contact after a certain period, provided there were no breaches of the orders. The court also imposed various restraints and communication requirements to ensure compliance and protect the children from further harm. The court highlighted the importance of maintaining a healthy relationship between the children and both parents while ensuring their safety and well-being.

In conclusion, the court issued detailed orders for the children's care and contact, including specific timelines for transitioning from supervised to unsupervised contact with the father, mechanisms for ensuring compliance, and provisions for communication and information sharing between the parents. The court's decision aimed to balance the children's need for stability and protection with the importance of maintaining relationships with both parents.

Orders

Orders of the court

SYC 3939 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VEDA

Applicant

AND:

MR HARENDRA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

9 DECEMBER 2024

THE COURT ORDERS THAT:

1. The mother shall have sole long-term decision-making responsibility for the children, X born in 2010 and Y born in 2013 (“the children”).

2. The children shall live with the mother.

3. The children shall spend time with the father as follows:

(a) Commencing on the second Sunday after the making of these Orders:

(i) Each alternate Sunday from 10.00 am until 4.00 pm;

(ii) On Father’s Day from 10.00 am until 4.00 pm;

(iii) On the father’s birthday from 3.00 pm until 8.00 pm;

(iv) In odd numbered years, the father is to spend time with the children on each of their birthdays from 3.00 pm until 8.00 pm;

(v) The children’s time shall be suspended on Mother’s Day and the father shall have time with the children on another Sunday as agreed between the parties;

(vi) At other time as agreed between the parties in writing.

4. From the date of these Orders until Y’s birthday in 2026, the children’s time with the father pursuant to these Orders is to be supervised by a professional supervision service as agreed between the parties and if no arrangement is reached then G Contact Service and:

(a) The father shall be responsible for the costs of supervision;

(b) The parties shall follow the directions and terms of the supervision service;

(c) The paternal family are at liberty to attend the supervised visits; and

(d) The mother is at liberty to obtain a written report from the supervision service at the mother’s cost.

5. In the event that the father speaks to the children, approaches the children, contacts the children in any way or spends time with the children contrary to the terms of these orders unless agreed by the parents in writing, then time specified in Order 3 is suspended for 8 weeks on the first occasion and indefinitely on any subsequent occasion.

6. Provided time has not been suspended in accordance with Order 5 then after Y’s birthday in 2026, the children’s time pursuant to Order 3 is to be unsupervised.

7. Provided time has not been suspended in accordance with Order 5 then from Y’s birthday in 2027 the children’s time with the father will be:

(a) During school term each alternate weekend from after school Friday to before school Monday;

(b) Each Tuesday at 6.00 pm, the children are at liberty to contact the father by way of FaceTime or telephone or text message and he is at liberty to respond;

(c) On Father’s Day from 10.00 am until 4.00 pm;

(d) On the father’s birthday from 3.00 pm until 8.00 pm;

(e) In odd numbered years, the father is to spend time with the children on each of their birthdays from 3.00 pm until 8.00 pm;

(f) The children’s time shall be suspended on Mother’s Day and the father shall have time with the children on another Sunday as agreed between the parties;

(g) Half of all school holidays by agreement and failing agreement the second half.

8. The mother is at liberty to suspend the children’s time with the father, for up to 6 weeks per year, for the purpose of travelling, attending camp or school excursions.

(a) The mother is to provide the father with 4 weeks’ notice of the intended dates.

(b) The mother is to provide the father with make-up times for any time that the father misses.

9. The father shall immediately notify the mother if either of the children attend the father’s residence or seek to spend time or communicate with the father outside of these Orders.

10. Should the children attend the father's residence or be in the father’s presence other than as permitted in these Orders, the father shall return the child or children to the mother within the hour.

Communication and information sharing

11. The parties shall communicate via a parenting application, Devitto, and if for whatever reason that application is no longer available, the parents are to communicate in a manner as nominated by the mother.

(a) The parties shall only use this to communicate about the children.

12. The father is permitted to receive the children’s school reports, school photos, and other information ordinarily provided to parents directly form the children’s schools, and this Order shall constitute sufficient authority to the children’s schools to provide this information to the father.

13. The mother is at liberty to provide a copy of these Orders to the children’s school and any person the children may attend for therapy and/or counselling.

14. The mother is at liberty to provide a copy of the Single Expert Report and the judgment in these proceedings to any person that the children may attend upon for the purpose of counselling and/or therapy.

15. The mother and the father are at liberty to provide a copy of the Single Expert Report and the judgment in these proceedings to any person they may attend upon for the purpose of counselling and/or therapy.

Restraints

16. Pursuant to s 68B of the Family Law Act 1975 (Cth), the father, Mr Harendra born in 1979 is restrained from contacting the children other than in accordance with these Orders, whether by electronic means or otherwise.

17. The parties are restrained from discussing these proceedings or any evidence filed in these proceedings or any evidence heard during the course of the final hearing, with the children, or from allowing any family members to do so.

18. Each parent shall at all times:

(a) Be courteous and respectful to the other parent and their family members;

(b) Not denigrate the other parent or their family members; and

(c) Be restrained from using profane language and making derogatory comments about the other party or their family members,

in the presence or hearing of the children and shall remove the children from the presence of any person who is denigrating the other parent or the other parent’s family in the presence of the children.

Explaining these Orders to the children

19. The mother is to facilitate the children meeting with the Independent Children’s Lawyer (“ICL”) in person or by video on the day of the judgment delivery at a time nominated by the ICL for the purpose of the final orders being explained to the children by the ICL.

20. Within 6 months of the date of these Orders, each parent shall pay the sum of $10,636.50 to the Legal Aid Commission of New South Wales, subject to any waiver.

21. Pursuant to Sections 65DA(2) and 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The mother gave evidence that she intends to obtain a new home (bought or rented) and this may assist the children practically to feel more at home in her household although it will not be walking distance from their schools.ConclusionsWhat do the findings about the relevant considerations mean for the type of orders which will manage risk and facilitate ongoing relationships? The parenting orders must be in the best interests of both children. That takes into account matters in respect of the present and ongoing safety and well-being. The children have been exposed to family violence perpetrated by their father against their mother. This has had an ongoing impact on the dynamic between the parents and on the relationships of the children with each parent. As already explained, the Court has the benefit of being able to see how various parenting arrangements have been implemented and with what degree of success. I could not be confident that if I made the orders that the father seeks, the children would spend time (or regular time) with their mother. I could not be satisfied that the father would facilitate and encourage that important relationship. The mother is wary of the father having anything other than supervised time with the children. In the first instance, she was concerned that the pattern of escalation of his behaviour in the years leading to separation caused her to act protectively in respect of her own physical safety. I did not understand her to be saying that she seeks to maintain supervision now because of a fear that the children may come to physical harm while with their father and I have found that this is not the case. I have found that the mother has been committed to her own parental education and the psychological and therapeutic needs of the children in a manner which is to the children’s advantage. The evidence clearly establishes from prior to separation that the father has been prepared to deride the mother in the children’s presence and I find that this has contributed to their rejection of her. I am also concerned that what the single expert described as a “fawning” response may be responsible for X’s idealisation of her father. The orders which will assist the children to develop a healthy relationship with both parents are orders which see them remain in the primary care of the mother. I am concerned that absent a mechanism for ensuring compliance with orders, the history suggests that the father (and his family) will facilitate the children spending time with him contrary to court orders and so I propose to make an Order which provides that if the father speaks to, approaches, has contact with the children or either of them other than in accordance with the Orders, then his time is suspended. The mother wanted indefinite supervision. Such an order may be made if there are cogent reasons for it: Moose & Moose (2008) FLC 93-375, H v K [2001] FamCA 687 and Slater v Light (2013) 48 FamLR 573. Here, the role and function of professional supervision is to ensure that the time the children and the father spend together does not have the function of undermining the children’s relationship with the mother. It is to protect the children from the psychological harm which would flow from being exposed to a narrative which deliberately or inadvertently casts the father and his family as better and the mother and her family as worse. If that protection is maintained, then the children will have the opportunity to settle in their mother’s care – respond positively to her rules and boundaries without the spectre of another parent who helps the children interpret parental boundaries and consequences as abusive and threatening.

Ratio Decidendi

Legal Principle Established

In X’s diary she acknowledges that part of her “hate” for her mother is because “she left”. Between separation and October 2023 The mother says that after separation the relationship between herself and X was good and that she marks the deterioration in the relationship as having commenced when the children commenced spending time with their father after separation. There is support for this in the school counselling records from X’s school counsellor. The note of the meeting between X and the counsellor on 16 June 2022 (Exhibit 62) reads that X “discussed family dynamics – namely that historically she has been closer to [Father] and brother has been closer to Mo”. A Senior Judicial Registrar had made orders on 2 June 2023 which provided that the children live with each parent in a week about arrangement. The mother had the first week and the children entered the care of the father on 9 June 2023. It is useful to examine the communication between X and the mother at the time of the mother’s hospitalisation in mid-2023 because there is no indication in those messages that there are difficulties in the mother/daughter relationship such as to explain the cessation of time upon the mother’s discharge. In mid-2023 the mother arranged for the children to live with the father because she had to be admitted to hospital. On that date the messages were as follows:Mother: “Thanks heaps for packing the bag for me. You’re wonderful to think of all the things I didn’t think of!”X: “No problem I cant believe u forgot a toothbrush hahah”Later that night at 9:20pmX: “hi r u ok”On the following day Mother: “Hi darling I’m still in hospital and can’t talk right now. I love you and [Y]”X: “Ok will u feel better to talk a bit later? Love u too hope u get better soon ♥” The mother followed up the last text from X by texting and phoning in the following weeks but seemingly without response. There is nothing in the evidence to permit the conclusion that X’s time stopped because of any act or omission by her mother.Between October 2023 and the present X’s relationship with the mother experienced significant strain in the period between October 2023 and July 2024 culminating in X remaining in her father’s care in July 2024 notwithstanding the existence of orders for equal time at that point. On 27 October 2023 orders were made which reintroduced supervision of the father’s time and the children again commenced to live with the mother. During the period which followed the children’s time with their father was professionally supervised. The relationship between the mother and X has, according to the mother, gradually improved. There is some objective support for that conclusion – as X has come to abscond from her mother’s care less over time. I accept the mother’s unchallenged evidence that the relationship has improved. There remains a significant concern about the father’s capacity to support the children’s relationships with their mother. This concern arises out of his propensity to act in ways which undermine the mother as a parent. One example is his facilitation of X’s absconding from her mother’s care. He has declined to remove her keys to his home and she has also returned to other members of the paternal family during the mother’s time. The father sets out a list of 18 occasions between November 2023 and May 2024. His affidavit was filed at the beginning of October 2024. I therefore conclude that this issue settled substantially between 30 May 2024 and 5 October 2024.