Vitalis & Kazan (No 4)
[2023] FedCFamC1F 579
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vitalis & Kazan (No 4) [2023] FedCFamC1F 579
File number(s): SYC 2820 of 2022 Judgment of: ALTOBELLI J Date of judgment: 13 July 2023 Catchwords: FAMILY LAW – PARENTING – Interim – Where the applicant is a transgender female – Application to vary interim orders following release of single expert report – Where no risk of physical or psychological harm has been identified in the expert report – Applicant seeks unsupervised overnight time – Respondent seeks daytime only with a further interim hearing to be held in four to six months – Orders made for unsupervised overnight time in line with the Independent Children’s Lawyer’s proposal. Cases cited: Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84 Division: Division 1 First Instance Number of paragraphs: 44 Date of hearing: 8 June 2023 Place: Sydney Counsel for the Applicant: Ms Tockar Solicitor for the Applicant: Marsdens Law Group Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Barkus Doolan Winning Solicitor for the Independent Children's Lawyer: Ms Laurence ORDERS
SYC 2820 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VITALIS
Applicant
AND: MS KAZAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
13 July 2023
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.All previous parenting orders are discharged.
2.The children, X born 2013 and Y born 2017 (“the children”) spend unsupervised time with the Applicant mother (“the Applicant”) as follows:
(a)For a period of four (4) weeks, each Saturday from 9am to 5pm; and thereafter,
(b)For a period of six (6) months, each alternate weekend from 9am on Saturday until 5pm on Sunday; and thereafter,
(c)For a period of a further six (6) months, each alternate weekend from after school on Friday until 5pm on Sunday;
(d)From 10am until 1pm on 25 December 2023 (Christmas Day);
(e)From 12pm until 5pm on the Applicant’s birthday; and
(f)Any other special occasions as may be agreed between the parties in writing.
3.Changeover shall occur at the McDonalds Restaurant located at Suburb T, if not at school.
4.The Applicant be at liberty to initiate telephone/FaceTime communication with the children each Monday and Thursday at 5pm, and the Respondent shall do all acts and things to ensure the children are available to take and receive such telephone/FaceTime calls from the Applicant.
5.Each of the Applicant and Respondent are permitted to attend all special school events and school activities to which parents of students at the school(s) attended by each child are invited and/or permitted to attend.
Restraints and Obligations
6.On a without admissions basis, the Applicant is restrained from:
(a)bathing and/or showering with the children, and each of them individually;
(b)being partly or wholly naked in the presence or sight of the children, and each of them individually; and
(c)save and except in the case of any emergency situation, entering into the same room as the children while each child is bathing, showering or toileting, and the Applicant must afford privacy to each child while they are bathing, showering and toileting.
7.When the children are spending overnight time with the Applicant, she is to provide the children with their own bedroom separate from hers.
8.Each party is restrained from discussing these proceedings with, or in the presence of, the children and engaging in derogatory or critical discussions about the other parent or these proceedings with, or in the presence of, any other person.
Therapy
9.The Applicant continue to attend upon her counsellor at V Organisation, at times as directed by the counsellor, for the purpose of engaging in psychoeducation about parenting, including in relation to developmentally appropriate parenting behaviour.
10.Both parties have leave to provide their treating counsellors or psychologists with a copy of the Single Expert Report of Ms U dated 20 March 2023.
Trial Directions
11.By no later than 4pm on 5 February 2024, each party is to file and serve any amended Application or Response on which they seek to rely.
12.By no later than 4pm on 12 February 2024, each party is to file and serve one consolidated affidavit in support of the orders sought by them, together with any other witnesses’ affidavits.
13.By no later than 4pm on 12 February 2024, each party is to file and serve an updated financial statement.
14.By no later than 4pm on 23 February 2024, each party is to serve exhibits to affidavits and tender bundles of all documents that might be tendered or relied upon in cross‑examination on each other, and provide an electronic copy of the same to my Associate.
15.In respect to exhibits to affidavits and tender bundles, only documents which are successfully tendered during the hearing shall be in evidence.
16.By no later than 4pm on 23 February 2024, the parties are to have served objections to evidence on each other.
17.By no later than 4pm on 27 February 2024, the parties shall have conferred, settled and forwarded to my Associate a document in electronic form setting out:
(a)Those parts of the evidence which shall not be read; and
(b)Those parts of the evidence to which an objection is maintained and the reason for that objection.
18.By no later than 4pm on 27 February 2024, the parties shall have conferred, settled and forwarded to my Associate in electronic form:
(a)A joint balance sheet; and
(b)A joint trial plan which allows for the trial to be completed within five days.
19.By no later than 4pm on 23 February 2024, the Applicant and Respondent are to file and serve a Case Outline document, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought; and
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
20.By no later than 4pm on 27 February 2024, the Independent Children’s Lawyer is to file and serve a Case Outline document, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought; and
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
21.Leave is granted to the parties to apply to relist the proceedings on short notice to deal with anything that may jeopardise the hearing dates, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
22.No further subpoenas be issued by either party without leave of the Court. Subject to any objection being raised by any person to whom a subpoena has been issued, photocopy access be granted to the parties’ legal representatives and the Independent Children’s Lawyer for the purposes of providing exhibits to affidavits and provisional tender bundles.
23.By no later than 4pm on 1 March 2024, each party is to file a notification as to costs pursuant to rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (including complying with rule 12.06(2)).
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 Vitalis & Kazan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the interim parenting orders that the Court has made between the applicant mother (“Ms Vitalis”) and the respondent mother (“Ms Kazan”) for the children, X aged 9 and Y aged 5 (“the children”).
BACKGROUND
Ms Vitalis is 45 years old and transitioned from male to female and identifies as female. She is self-employed in her own business and currently resides in the former family home in Suburb H. Ms Kazan is 47 years old and lives with her parents in Suburb W. She is currently employed as a manager and works in a full time flexible capacity. The parties married in 2010 and separated on 23 February 2022.
This matter continues to be a complex case as the parties and the children navigate the significant changes that the family is going through. The current application has been brought by Ms Vitalis to vary the interim parenting orders made on 5 August 2022. It should be noted that the matter has been set down for final hearing for five days commencing on 4 March 2024. Therefore, any interim orders made in these reasons for judgment are intended to be in place for the next eight months.
The Court is satisfied that it is in the best interests of the children to revisit the issue of the interim orders for them to spend time with the Applicant. The Court is also satisfied that the receipt of the expert report discussed below constitutes a sufficient change of circumstances: Rice & Asplund (1979) FLC 90-725.
THE MATERIAL BEFORE THE COURT
In support of her case, Ms Vitalis relied on the following documents:
(a)Application in a Proceeding filed 5 May 2023;
(b)Her affidavit filed 5 May 2023;
(c)Minute of interim orders sought filed 2 June 2023; and
(d)Case outline filed 2 June 2023.
In support of her case, Ms Kazan relied on the following documents:
(a)Response to an Application in a Proceeding filed 29 May 2023;
(b)Her affidavit filed 29 May 2023;
(c)Notice of child abuse, family violence or risk filed 17 May 2023; and
(d)Case outline filed 2 June 2023.
In support of their case, the Independent Children’s Lawyer relied on the following documents:
(a)Single Expert Report of Ms U dated 20 March 2023 (“the Report”);
(b)My reasons for judgment delivered 5 August 2022; and
(c)Case outline filed 7 June 2023.
THE PROPOSALS
Current Orders
Until the date of hearing on 8 June 2023, the parenting arrangement was governed by orders made on 5 August 2022. They provide for the children to live with Ms Kazan and spend supervised time with Ms Vitalis each Saturday for three hours, with such time to be supervised by M Contact Service or such other supervision agency. The orders further provide for Ms Vitalis to initiate telephone/FaceTime communication with the children each Monday and Thursday at 5pm. It is common ground that this time has proceeded very well for the children and uneventfully from any risk perspective.
At the conclusion of hearing on 8 June 2023, I made interim-interim orders in line with Orders 1–6 of Ms Kazan’s case outline filed 2 June 2023. They provide for the previous parenting arrangement with Ms Vitalis to be discharged, for the children to spend unsupervised time with Ms Vitalis each Saturday from 9.30 am until 12.30 pm for a period of eight weeks with changeover occurring at Suburb T McDonald’s. The spend time with arrangements following the eight week period have not been traversed here as these interim orders supersede them. They also allow both parents to attend all special school events and activities as well as place restraints on Ms Vitalis from bathing with the children on a without admissions basis.
On 8 June 2023, orders were also made for the parents to engage Ms Z to provide therapeutic support and counselling to the children. Email communication with the parties’ lawyers indicate that the children have now completed two intake meetings with Ms Z.
Proposals of Each Parent
Ms Vitalis’ Proposal
Ms Vitalis proposes the children spend unsupervised time with her in a graduated regime of four phases. In phase one for a period of two weeks, the children would spend time with her each Saturday from 10.00 am until 1.00 pm (three hours) which would then increase to 9.00 am until 5.00 pm (eight hours) in phase two for a period of six weeks. In phase three for a period of six months, she proposes the children spend time with her from 9.00 am Saturday to 5.00 pm Sunday each alternate weekend and on Wednesdays in the intervening week from 3.00 pm or after school until 7.30 pm (or from 9.00 am if not a school day). In phase four (which would proceed until final orders are made), the overnight would extend to two overnights from Friday 3.00 pm until 5.00 pm Sunday each alternate weekend with the intervening Wednesdays from phase three remaining in place.
Ms Vitalis further proposes that the telephone/FaceTime communication order made on 5 August 2022 remain in place and specific time be defined for special occasions including Christmas, her birthday and the children’s birthdays.
On a final basis, Ms Vitalis proposes at paragraph 20 of the Report that she and Ms Kazan have equal shared parental responsibility and the children live with each parent in an equal time arrangement.
Ms Kazan’s Proposal
As mentioned above, Ms Kazan’s proposal for time arrangements were made as an interim‑interim order on 8 June 2023. Following the eight week period mentioned in [9], the children’s time with Ms Vitalis is to increase from three hours to 9.30 am until 5.00 pm each Saturday (7.5 hours). In addition, specific time for the children to spend with Ms Vitalis is stipulated for Christmas Day and Ms Vitalis’ birthday.
During the course of the hearing, and despite the fact that it was not in her Minute of Order, counsel for Ms Kazan proposed that a further interim hearing be set down in four to six months to revisit the issue of overnight time. The Court infers that this proposal was a last minute development and probably in response to the recommendations contained in the Report.
Ms Kazan also seeks an order that Ms Vitalis attend upon a counsellor for the purposes of obtaining support with her psychoeducation in developmentally appropriate parenting behaviour.
On a final basis, Ms Kazan proposes that she and Ms Vitalis have equal shared parental responsibility. She further proposes that the children live with her and spend unsupervised time with Ms Vitalis each alternate weekend and for one mid-week afternoon in the intervening week (paragraph 21 of the Report).
The Independent Children’s Lawyer’s Proposal
The Independent Children’s Lawyer proposes that the children spend unsupervised time with Ms Vitalis for a period of two weeks for three hours each Saturday, then for a period of six weeks for eight hours each Saturday, then for a period of six months each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday and thereafter each alternate weekend from after school on Friday until 5.00 pm on Sunday. The Independent Children’s Lawyer proposes that special occasions be as agreed between the parties in writing and the parties not denigrate each other in the presence of the children. The Court notes this proposal for time is most consistent with the Report’s recommendations.
The Independent Children’s Lawyer further seeks orders in relation to Ms Vitalis continuing to attend upon her counsellor at V Organisation and for both parties to have leave to provide their treating counsellor with a copy of the Report.
Recommendations of the Single Joint Expert
The Report prepared by Ms U (“the Expert”) dated 20 March 2023 provides the following recommendations: the parents have equal shared parental responsibility for the children, the children live with Ms Kazan; the children spend unsupervised time with Ms Vitalis in a graduated regime beginning with one day (day time only) each weekend for eight weekends, then moving to one overnight (on a weekend) per fortnight for six months, then moving to two consecutive overnights (on a weekend) per fortnight for six months, then moving to three consecutive overnights (on a weekend) per fortnight for six months. I will not traverse any further recommendations provided by the Report as final orders will be made by then.
Differences between the Proposals
The Independent Children’s Lawyer’s proposal is in line with the recommendations put forward by the Expert except that she breaks up the Expert’s recommendation of “one day (day time only) each weekend for eight weekends” into two weeks of three hours and six weeks of eight hours. Both proposals are silent on any specified time for special occasions.
Ms Vitalis’ proposal is largely in line with the Independent Children’s Lawyer’s proposal and the Expert’s recommendations except that she proposes additional daytime only time on Wednesdays in the intervening week when she begins spending overnight time with the children each alternate weekend. Ms Vitalis also proposes specified time for special occasions on Christmas, her birthday and the children’s birthdays.
Ms Kazan’s proposal deviates the most from the Expert’s recommendations as she seeks orders that the children spend day time only with Ms Vitalis and another interim hearing be held to revisit the issue of overnight time in four to six months. Ms Kazan also proposes specified time with Ms Vitalis for special occasions but only on Christmas Day and Ms Vitalis’ birthday.
SINGLE EXPERT REPORT
In the Report, the Expert identifies the critical issues in this matter to be whether Ms Vitalis poses a risk to the children (and if so, how that can be best managed) and the parties’ inability to effectively co-parent and communicate about the children. The Expert is of the view that the children are at risk of psychological harm “in the context of the separation, ongoing parental conflict, lack of parental coordination, and lack of coordination regarding supporting the children with [Ms Vitalis’] gender transition”.
An incident that was noted by the Expert was at the conclusion of the observation between the children and Ms Vitalis at paragraph 124 of the Report:
…[Y] hugged [Ms Vitalis] and [X] slapped [Ms Vitalis] on the bottom with her hand. [X] hugged [Ms Vitalis] again and [Y] appeared to mimic her sister and slapped [Ms Vitalis] on the bottom as well. There was no response from [Ms Vitalis] to reprimand that behaviour.
With respect to this the Expert says Ms Vitalis may have an inability to implement bodily boundaries although her lack of reaction may have been a result of her being overly conscious of the observation. However, as it is a concern also raised by Ms Kazan, the Expert recommends that Ms Vitalis receive psychoeducation in developmentally appropriate parenting behaviour. The Court intends to make such an order. The Expert further recommends that if the children commence spending unsupervised and overnight time with Ms Vitalis, they should always have their own bedroom separate to Ms Vitalis and be given privacy to bathe themselves.
The Expert also raises concerns about the children disclosing that the extended family are making unsupportive comments to them about Ms Vitalis. She therefore recommends that Ms Kazan communicate with them about the importance of refraining from making negative comments about Ms Vitalis as it may be psychological harmful to the children. The Court will remake its pre-existing order that the parents do not discuss the proceedings with or in the presence of the children but will add that no derogatory or critical discussion take place about the other parent or these proceedings with, or in the presence of, any other person.
The Expert further explains that expertise in transgender families is a specialised field in psychology and the children need psychological support immediately. The parents have not managed the gender transition with the children well as there has been no united discussion about the changes in their family, despite their obvious confusion and curiosity. Ms Kazan’s struggle to deal with the gender transition is understandable as it presents a loss of her marriage and the person she knew. However, as the Expert says in paragraph 163, her response is critical in managing the children’s adjustment and wellbeing as it will impact their experience. The Expert recommends that both parents and the children engage with a psychologist who can work with them to support the parents with psychoeducation, support and advocacy. She says Ms Kazan would benefit from receiving support in a more balanced manner than her current psychologist and Ms Vitalis from a psychologist that can provide assistance with parenting support. The respective psychologists will also hopefully work to improve the parents’ communication and co-parenting to work on the significant mistrust that currently exists between the parties. The Court notes that on 8 June 2023 the parents agreed to engage Ms Z to provide therapeutic support and counselling to the children.
The parenting arrangements as recommended by the Expert have been set out above. In relation to the spend time with arrangements with Ms Vitalis, the Expert says at paragraph 172:
The children take pleasure in their interactions with [Ms Vitalis] and miss her when they are not spending time with her. As mentioned previously, [Ms Vitalis] plays well with the children and engages with them in activities which they enjoy. It would be concerning if the children continue to spend restricted time with her. If this were to occur, then they may internalise this as a loss and feel a sense of abandonment by [Ms Vitalis] and it would have a negative impact on them if this were to occur in the long term.
The Expert also comments on considerations from a cultural perspective as the family comes from a conservative religious family and the children attend a conservative religious school. The Expert recommends that if the children are not supported and experience discrimination or prejudice as a result of Ms Vitalis’ transition then a change in the children’s school may need to be considered, although it is noted that this needs to be a last resort.
THE CONCERNS OF MS KAZAN
The case opposing the implementation of the recommendations of the Expert was founded on a number of different considerations. Counsel for Ms Kazan emphasised the need to proceed slowly, given that this family remained “a work in progress”. There was still residual concern about the parenting capacity of Ms Vitalis particularly in relation to insight. The Expert’s evidence remained untested. Ms Kazan was not saying “no” to more time, she was saying “not yet”.
The Court finds the proposal of Ms Kazan to have yet another interim hearing before the final hearing highly problematic. It is, with respect, ill-considered and reflects an inherent and unfounded anxiety in Ms Kazan about extending the children’s time with Ms Vitalis. The Expert has identified the stress on the children, indeed on both parents, of the continuation of these proceedings. The reluctance of Ms Kazan is strangely dissonant to the Expert’s observations at paragraph 123 of the Report about the joyful and excited interaction between the children and Ms Vitalis.
Counsel for Ms Kazan methodically identified statements in the Report which contra-indicated making the orders proposed by the Independent Children’s Lawyer and Ms Vitalis, whilst ignoring that the Expert was plainly aware of all of these considerations and nonetheless made the recommendations that she did.
The Court agrees with the submissions made by the Independent Children’s Lawyer that the Expert does not rule out psychological intervention occurring concurrently with increased time. Extending the children’s time is consistent with their views and, in any event, their time occurs in the familiar territory of the former family home.
At paragraph 132 of the Report, the Expert emphasises that the children are at an important developmental stage where they need meaningful contact with their significant attachment relationships. This includes having both parents involved in their lives and daily routines. Ms Vitalis’ proposal optimises this whereas Ms Kazan’s proposal minimises this. This is particularly the case when the Expert formed the view, with which the Court agrees, that the children do not appear to be at risk of physical or psychological harm, other than in the context of a parental conflict.
On balance, the benefit to the children of more time with Ms Vitalis would exceed any burden or disadvantage to them. Their therapy has already commenced and thus they will be well supported during this period.
Even though the evidence of the Expert is untested, it remains the only independent and expert evidence before the Court and thus there is no present reason not to give its recommendations significant weight.
THE FUTURE
The final hearing of this case is in eight months. The expert evidence is in. The therapeutic support has been put in place. The parents, with the assistance of their very experienced family lawyers, are encouraged to robustly reality test their own proposals and to consider the future of this litigation, particularly in terms of the impact on the children, as well as on the parents themselves. This is not a case that needs to be litigated to final hearing. Both parents, as well as the children, have been on a journey of change, some of which has been quite confronting and discombobulating. Intense change sometimes blurs any vision of the future but things have settled down. Both parents and the children seem to be adjusting to the changes in their lives. A welcome change for them all would be the end of this litigation. Both parents would do well to remember that the residual communication and trust issues that exist between them are not issues that will be regulated or ameliorated by the making of Court orders – this is work they need to do themselves with appropriate professional assistance, outside of the Court system. A final hearing will not help this issue.
THE ORDERS
The Court will adopt the Independent Children’s Lawyer’s proposal for time but taking into account the interim-interim arrangements that have been in place since 8 June 2023. The children have now had five weeks of unsupervised time with Ms Vitalis each Saturday for a period of three hours. The Court will order that that time be immediately increased to eight hours from this Saturday and that this proceed for a period of four weeks. It is noted that the Independent Children’s Lawyer recommends that the eight hours proceed for a period of six weeks but the Expert recommends daytime only for a total of eight weekends and Ms Vitalis has already done five weekends. Following this, the children will spend time with Ms Vitalis for a period of six months each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday and thereafter each alternate weekend from after school on Friday until 5.00 pm on Sunday.
In relation to time stipulations for special occasions, the Court has already made interim orders for the children to spend time with Ms Vitalis on Christmas Day and her birthday. The Court will also make the order that time is to occur on special occasions as agreed between the parties in writing in line with the Independent Children’s Lawyer. The parties are encouraged to communicate about this as it presents an opportunity for Ms Vitalis and Ms Kazan to develop a more positive co-parenting relationship.
It is briefly noted that Ms Vitalis proposed the day time only on Wednesdays in the intervening week as the Independent Children’s Lawyer’s and the Expert’s proposals contemplate a gap of two weeks between visits and that is too long. The Court contemplated making such an order but decided against it, for the time being. This is a possible enhancement to the orders at a final hearing.
The Court will discharge the previous interim parenting orders and make a new set of orders in these reasons for judgment (including previously made restraints) for ease of access and consistency.
As aforementioned, the Court will order that both parties engage in therapy, restraints on Ms Vitalis to provide the children with their own bedrooms and privacy to bathe themselves, and restraints on both parties from discussing these proceedings or denigrating the other party.
Noting trial directions are yet to be made in this matter, these will also be included in the orders made today.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 13 July 2023
0