Andreadis & Andreadis (No 2)

[2021] FCCA 1284

FEDERAL CIRCUIT COURT OF AUSTRALIA

Andreadis & Andreadis (No 2) [2021] FCCA 1284

File number:	DNC 709 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	5 May 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – concerning a child who is ten years of age – where there is significant conflict between the parents – where there is evidence the child has aligned with the father – where the hild is showing signs of psychological harm – Court satisfied it is appropriate to adopt the recommendations of the Family Consultant
Legislation:	Family Law Act 1975 (Cth) ss 11F, 60CC
Number of paragraphs:	11
Date of hearing:	5 May 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Duggan of Hunt & Hunt
Solicitor for the Respondent:	Ms Coonan of Coonan & Coonan Legal

ORDERS

DNC 709 of 2020

BETWEEN:

MS ANDREADIS

Applicant

AND:

MR ANDREADIS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	5 MAY 2021

THE COURT ORDERS THAT:

1.That the child X (“X”) born in 2011 (“the child”) live with the Father.

2.That both parties do all things necessary to immediately enrol at D Contact Centre.

3.That for a period of four (4) weeks, the child shall spend time with the mother supervised at D Contact Centre subject to their availability.

4.That after the conclusion of the four weeks (4) of supervised time spent at D Contact Centre, that for a period of twelve (12) weeks the child shall spend unsupervised time with the mother during the day either on Saturday or Sunday each week from 10:00am to 2:00pm.

5.That changeovers shall occur at McDonalds Suburb E or at F Service Station.

6.That the child shall not be transported by the mother in a motor vehicle that is unregistered.

7.That at the conclusion of twelve (12) weeks of unsupervised time spent and pursuant to s.11F of the Family Law Act 1975, the parties and the child X (“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 a date to be advised  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.

8.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.

9.That the parties shall enrol, participate and complete “For the Kids” or an equivalent post-separation parenting course at G Families or D Contact Centre and the parties shall provide to each other proof of enrolment and the completion certificate within 7 days of receiving same.

10.That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child X (“X”) born in 2011 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

11.That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

12.That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and/or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

13.That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

14.That the matter be adjourned to 6 September 2021 at 11.00am for mention.

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 under the pseudonym Andreadis & Andreadis (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter concerning X, who is also called X, which is, apparently, an anglicised version of his name.  X is 10 years old.  He is currently living with his father and is effectively not spending any time with his mother. 

2. The Family Consultant, in a Child-Inclusive Conference, identified that X was very anxious about this litigation. It would appear that he has, to some extent, been exposed to the conflict, and the Family Consultant was of the view that there were two factors at work in the child’s thinking. One factor was that there was evidence that when the child lived with the mother he had been exposed to neglect. The child referred to the mother smoking marijuana. The child said that the mother, in other ways, had not properly cared for him. He said he had been left at home, made to cook for himself, and that she had had fights with her boyfriend.  The truth, or otherwise, of that has not been established. However, it certainly reflects the child’s views. Those views may also be consistent with a degree of alignment, but that is not clear at this stage.

3. The Family Consultant said the child was showing signs of significant anxiety about whether his current living arrangements – that is living with his father – were likely to be changed.  It should be noted there was nothing in the material that suggested there was likely to be a change in the child’s living arrangements.  None of the parties are proposing that in the interim orders they seek. I see no real indication that it is likely. 

4. The parties are highly hostile to each other.  That means that a child is likely to be exposed to conflict, particularly a young child like X, and the risk is that he will suffer psychological harm.  There is also a risk that his present views are an expression of psychological distress that has resulted from the conflict as much as anything else.  I cannot form any clear view about that in this interim hearing.  However, I do accept that the Family Consultant’s observations and recommendations should be given very significant weight, and I give them very significant weight in the context of this highly conflictual matter. 

5. Both parties propose that the child should spend time with the mother.  The mother proposes that the time spending should be as reflected in the Family Consultant’s recommendations.  The father says that the child should spend twelve weeks of supervised time at D Contact Centre with the mother.  Once the supervised time concludes, the father says that an Independent Children’s Lawyer (ICL) should consult the child about his views, and those views be conveyed to the Court.

6. Given the fact that there is evidence of the child’s strong alignment, I am of the view that it is not sufficient that the child’s wishes simply be ascertained by a conference with the ICL. This is particularly so given the fact it is unclear whether the alignment is being caused by the child’s experience as opposed to psychological alignment. Therefore I will make an order for the appointment of an ICL. However, I do not consider that the father’s proposal is sufficient in this regard. I believe that there needs to be another Child-Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (Cth) (the Act). I will make an order for this to occur.

7. In relation to the child’s time spending with the mother, the father has not adequately articulated a reason why his proposal should be preferred. I have not been provided with any reason why I should adopt his submissions other than that the child does not wish to spend time with the mother. That states the obvious. It merely states the problem not the solution. I am satisfied that the Family Consultant’s recommendations are well-founded and should be adopted for the reasons she gives.

8. I am satisfied, in having regard to all the matters section 60CC of the Act, particularly subsection (2)(a), that on an interim basis these arrangements will allow the child to develop a meaningful relationship with both parents. I am satisfied that the Family Consultant’s recommendation should be adopted.

9. I will make the orders proposed by the mother.  However, I do not propose to make the order about telephone communication at this stage. 

10. There will be an order that both parents enrol and complete a parenting course, such as “For the Kids”.  They are to provide evidence to the other party of enrolment and completion.

11. I will otherwise adjourn the matter to 6 September 2021 at 11:00am.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       9 June 2021