ANDREADIS & ANDREADIS

[2020] FCCA 3600

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDREADIS & ANDREADIS [2020] FCCA 3600

Catchwords:
FAMILY LAW – Parenting – application by the mother for a recovery order –
where the child lives with the mother and spends time with the father – where the father refused to return the child to the mother – where allegations the child told the father he did not feel safe living with the mother – whether there is an unacceptable risk in the child returning to live with the mother – satisfied there is an unacceptable risk.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS ANDREADIS

Respondent: MR ANDREADIS

File Number: DNC 709 of 2020

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Gray

Solicitors for the Applicant: Grays Legal NT

Counsel for the Respondent: Ms Coonan

Solicitors for the Respondent: Coonan & Coonan Legal

ORDERS

UPON NOTING:

That the father undertook to ensure that the agreement for the child to spend time with mother will not unreasonably be withheld.

BY CONSENT UNTIL FURTHER ORDER:

1. That the child X born in 2011 spend time with the mother at the paternal aunt’s home in Suburb B on times as agreed between the parties.

2. That each party be restrained from denigrating the other party in the presence or hearing of the child or permitting any third person to do so in the presence or hearing of the child.

3. That communication between the parents shall be only in relation to issues of the child.

AND THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child X born in 2011 live with the father.

2. That the child spend time with the mother at dates and times to be agreed between the parties.

3. That pursuant to s.11F of the Family Law Act 1975, the parties and the child X born in 2011 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 1 April 2021 at 9.00am. The parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled NOTING that the family consultant is to have discretion as to how the parties attend.

4. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

5. That the matter be adjourned to 5 May 2021 at 11.30am for interim hearing in relation to which parent the child lives and spends time with.

IT IS NOTED that publication of this judgment under the pseudonym Andreadis & Andreadis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 709 of 2020

MS ANDREADIS

Applicant

And

MR ANDREADIS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application concerning a child X, or X, as he is called.  X is nine years old.

3. It is not in dispute that he has been living with his mother since the parties separated, which was in 2017.  He has, however, been spending substantial and significant time with his father, it would appear, and has been spending every weekend with his father. 

4. The mother's application was filed on 16 December supported by an affidavit. The application is essentially an application for a recovery order on the basis that the father, without proper reason, had refused to return the child.  In the mother's affidavit, a short affidavit (one and a half pages), she refers to the father as being controlling and makes allegations that he has insulted her and not paid child support and the like, and that the father is exercised because he believes that she has another relationship, etcetera.  She says that that is not the case.

5. She annexes to her affidavit a text message from the father that says the following:

   Ms Andreadis, I don't think you are in the right mindset and I don't think it's a good idea for you to have X today, as he going to stay with me tonight.

   The mother, as I say, annexes that text to the affidavit.  The surrounding texts are obscured and it is not possible to read them. 

6. In the father's responding affidavit, he includes the full text or at least part of the series of text exchanges between the parties.  It appears that the parties were conducting an SMS dispute and the mother, at one point said:

   I hope you're happy, because I'm fucking not.  I don't want to be on this fucked up planet.  I want to die.  I can't wait for that die [sic].

   And then the father replied:

   Ms Andreadis, I don't think you're in the right mindset and don't think it's a good idea for you to have X today.  He's going to stay with me tonight.

7. Whether or not that is a threat of suicide, as was characterised by the father's counsel, I do not know.  It is clearly an example of the mother being very upset and then there are various other things said as well.

8. The mother did not reveal that when she made her application. When I asked why that was not included in the mother's supporting affidavit, her solicitor said that she had not received instructions about that initially from the mother, though she has since, on reading the father's responding material.  This is a jurisdiction where frank disclosure is required about children, for obvious reasons.  Children are vulnerable.  They cannot speak for themselves, unless in these initial stages.

9. In my view, it was relevant and necessary for the mother to include that information and she did not include it for reasons that have not been explained.  More concerningly, the father annexed some further text messages from the mother to the child or between the child and the mother.  One is dated 10 July and one is dated 3 June.  I understand it is from 2020 and that is not in contest.

10. The father, it appears, obtained the child's telephone once this dispute developed and has taken what looks like a screenshot of the text messages.  One, as I say, is from 10 July 2020.  It is unclear what the time was, but it appears to be the child speaking:

    When are you coming?

    The mother replies:

    Not yet.  Go to fucking sleep.

    Next:

    X, I'm coming.  It's a long drive. 

    That is in the context where the father alleges that the mother has left the child alone unattended for some periods. 

11. More concerningly, on a subsequent date, possibly 30 June, there is a text exchange where the child writes to the mother and says:

    Mum.

    And the mother replies it is alleged, at least:

    Leave me the fuck alone before I come in there and smack you.

    The child replies:

    Sorry.

12. Those messages give me some cause for concern, particularly in the context where the father, in his responding affidavit, alleges that what precipitated refusing to return the child was not so much the mother's threats of harm, if that is how they are to be characterised, but the fact that on 13 December 2020 the child told him that he does not feel safe at the mother's home and did not want to return to live with his mother. 

13. According to the father, the child referred to an altercation that had occurred at the mother's home involving a male known as Mr C.  The child apparently said that the mother's brother attended and Mr C was then requested to leave and that the child told him that he was scared of Mr C.  The mother has interrupted me giving these reasons to deny that that happened.  Whether or not that happened, I do not know.  This is an interim hearing but I am taking the approach of deciding whether there is an unacceptable risk in ordering the child returned to the mother.

14. There are other allegations: that the child has said to the father that when people are at his home; the mother requests him to stay in his room and go to sleep, somewhat perhaps consistently with the text message; that the child is left at home unattended, again, somewhat consistently with the text messages; allegations that the child is not properly fed and the mother speaks to the child in a derogatory manner.  Again, the last appears to be consistent with the text message I have seen.

15. I am satisfied that there are questions to be answered in this case that cannot be dealt with on an interim basis.  There is no allegation, as far as I can see, that the child is at risk of harm in the father's care and I am satisfied that at this stage there is an unacceptable risk of harm in ordering the child's return to his mother and I do not propose to make that order today. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 21 January 2021