APOSTOLOS & DIMAKIS - [2020] FCCA 3603

FEDERAL CIRCUIT COURT OF AUSTRALIA

APOSTOLOS & DIMAKIS

[2020] FCCA 3603

Catchwords:
FAMILY LAW – Parenting – interim hearing – where the father lives in Brisbane – where the mother lives in Sydney – where the parties have one infant child – best interests – risks issues – short-form reasons.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 69ZL

Cases cited:

Goode & Goode (2006) 206 FLR 212

Campbell & Spalding [1998] FamCA 66

S & McL [2006] FMCAfam 686

Morgan & Miles (2007) 312 FLR 114

MRR & GR (2010) 240 CLR 461.

Browne & Keith (2015) 55 Fam LR 208

Nappert & Pagel [2020] FCCA 1238

Parks & Farmer [2012] FamCAFC 12

Edgar & Strofield [2016] FamCAFC 93

Applicant:

MR APOSTOLOS

Respondent:

MS DIMAKIS

File Number:

BRC 14514 of 2020

Judgment of:

Judge Howard

Hearing date:

14 December 2020

Date of Last Submission:

14 December 2020

Delivered at:

Brisbane

Delivered on:

14 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Alexander

Solicitors for the Applicant:

H Drakos & Company

Counsel for the Respondent:

Ms McMillan QC

Solicitors for the Respondent:

Pearson Emerson Family Lawyers

ORDERS

That the parties provide to the Court a draft order to reflect the Reasons for Judgment delivered 14 December 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 14514 of 2020

MR APOSTOLOS

Applicant

And

MS DIMAKIS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 14 December 2020 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court. Further, these reasons were delivered in short-form in accordance with s.69ZL of the Family Law Act 1975 (“the Act”).

The matter before the Court relates to one child. The child’s name is X and she was born in 2020. Her parents are the applicant father, Mr Apostolos, and the respondent mother, Ms Dimakis. It’s an unusual set of circumstances to say the least. The father is a businessman in Brisbane, with substantial business interests in Brisbane and Southeast Queensland. His family live in Brisbane. He has the support of his family in Brisbane, and he wants to remain living in Brisbane.
The mother of the child is from Sydney. She has family support in Sydney. The mother is a legal professional in Sydney and works in a firm which I understand is controlled by her own father, and she’s also a board member on the licensing authority by appointment, I imagine, of the B Authority. She has the support of her family in Sydney. Her friends and networks are in Sydney and she wants to stay in Sydney.
The parties, it seems on both sets of evidence, had something of an “on again, off again” relationship for some years, and I do think that it’s not in dispute that one of the issues in the so called “on again, off again” relationship was the fact that the father lived in Southeast Queensland and the mother lived in Sydney and what, “was to be done for the future?”. The father’s evidence is he did not want to commit to a marriage until the mother had committed to moving to Brisbane.
In any event, they came to some arrangement and the father says, well, the arrangement was the mother had agreed to move to Brisbane, and I understand from the evidence that a wedding was planned for 2020.
COVID-19 has interrupted the lives of this couple, as it has for entire world. The child, X was born in 2020 in Sydney. The mother was still in Sydney during the time of the confinement, and then the child was born, and the father was down in Sydney for the birth. And then because his business interests relate, as I understand his evidence, primarily to the running of entertainment companies in Southeast Queensland, that business was significantly interrupted during the COVID lockdown periods. He was able to work from Sydney for about four months from March until July 2020.
It would not have been an easy situation because it was not an easy situation for anybody at that point in time. The uncertainty that came with the pandemic. The arrival of a new child.
The father’s desire to return to Queensland with his new family, with a new addition to his family of course as well, and the mother. The borders opened to New South Wales but they were going to be closed again and the father was keen to get back to Queensland and move the mother and the child to Queensland, or have them move, and he has a house, into C Street, Suburb D in Brisbane, and that was to be the family home, and work by way renovation was done on the property.
The mother was involved, to some extent, in relation to the planning of the renovation. On the mother’s evidence, before she left Sydney on 31 July 2020 with the child to come to Queensland, she felt that the relationship was deteriorating. I do not know whether that is an agreed fact and hence I only make a reference to it. I certainly do not make a finding in respect of it. What probably tends to support it as something that would be likely to be a finding at a final hearing would be the fact that the mother only stayed here with the child for five weeks after she got here.
So when the mother got to Brisbane, the evidence is that the maternal grandmother came to Queensland as well and lived in the house in C Street with the mother and the child and of course the father of the child, Mr Apostolos. I mean, I would point out what might be called the very obvious stressful situation that one would expect to arise when one has, to start with, a mother, a father, a new baby and in-laws staying with you. But, of course, that was the reality.
People needed support, and the father was willing to accommodate that situation, and the mother needed that support, and the mother says she was stressed. She wasn’t well. She was physically unwell after the birth. She considered that the father, if I can put this in the most polite way I can, was not as sensitive as he might have been. I do not intend making a finding along those lines, but that is what the mother says.
So the situation now is the proposals are the father wants the mother and the child to return to Brisbane and, unlike many cases which are along these lines, he says there is a house which is available for the mother and the child which she will not have to pay for and that he will fund, and there are other outgoings he has offered to fund, and, on any view of it, it is a very generous and decent offer. But it is still only one aspect that I need to take into account, because on the other hand I have a mother who is a professional woman, a legal professional in Sydney, with an appointment to a significant board, who has a lot of family support in Sydney and a career in Sydney.
And the mother says, well, hold on a minute, I'm the primary carer of this child. I'm still breastfeeding this child. Does the Court seriously want to uproot me and move me back to Queensland where I will sit in a house in Suburb D whilst my career is in Sydney. My family and my friendship networks are in Sydney. And by the way, didn’t you read my affidavit, the whole thing made me very stressed, being there in the first place.
It’s not an easy situation. We all know that. That is why the family is here. The family is here because they cannot work it out. Sydney and Brisbane. The Full Court has had quite a few different things to say over the years about cases of this kind, but one thing that I am sure about is this. Every case is different. The outcomes will depend, to a large extent, on the individual facts.
The matter will stay in my docket and I will hear a final hearing on 20 and 21 May 2021, unless the parents can reach a final agreement before that time, which, at the moment, seems unlikely. So we are dealing now with a set of circumstances as to what the Court should do for a six month period between mid-December 2020 and mid to late May 2021.
I have already stated the proposals in broad terms. The father’s proposal is contained in his affidavit and in various other places and includes, daytime contact initially. Progressing to some overnight time. And it’s all set out. He’s looking at starting on the Tuesday, Thursday and Saturday from 9am until 6pm. And the mother’s proposal is, no, let me stay in Sydney. Here is where my career is. Here is where my family are and my support networks. The mother says I am the primary carer for the child and there is going to be a trial in May in any event and the Court can work it all out then. The mother’s proposal is in the material and it provides for, amongst other things, time in Sydney – daytime contact initially, in the presence of a member of the mother’s family.
I have heard from Mr Alexander, counsel on behalf of the applicant father, and Ms McMillan of Queens Counsel on behalf of the respondent mother. The mother attends today by telephone, and the instructing solicitor for Ms McMillan also listens in by the telephone.
In Goode & Goode (2006) 206 FLR 212 the Full Court of the Family Court of Australia set out, quite a while ago now, how a Court should conduct these interim hearings. Goode & Goode was decided before the Parliament enacted section 69ZL of the Act, which permits the Court to provide reasons in the short form when making an interim parenting order. In broad terms I have identified the competing proposals and I have given a broad outline of the issues in dispute. The mother wants to stay in Sydney with the child and the father wants the mother to return to Queensland with the child.
It is difficult to go through many of the section 60CC factors. There is not enough evidence. There is no cross-examination. There are, of course, important aspects, such as section 60CC(2)(a) the question of “meaningful relationship” – which I have considered.
The particular circumstances were that the mother says the relationship deteriorated significantly, and after only five weeks she decided to return to Sydney with the child. The evidence seems clear enough that the mother did not tell the father about this. As to the precise reasons for doing that, that seems to be something I should consider at the final hearing.
It would have been better if a different approach had been taken, and if the father had been consulted and informed and this had been talked through, but I do think that in a circumscribed hearing like this it is very difficult to make a finding in relation to that particular issue. So the case is highly unusual in this respect. That the child is now only 10 months old and through all the child’s life thus far, the child has only lived in Queensland for five weeks. But the father points out, and I think it is probably clear enough, that there was an intention that Brisbane was to be the home for the child and for the new family.
The move here by the mother and the child would certainly support that contention by the father. I was referred to the decision of Campbell & Spalding [1998] FamCA 66. I was referred also to the decision of Brown FM (as His Honour then was) in S & McL [2006] FMCAfam 686. I was also referred to the decision of Morgan & Miles (2007) 312 FLR 114, in particular the comments made by Boland J at paragraph 88. I am familiar with those decisions and with the matters referred to there; and the views expressed in those decisions; and the comments made concerning what’s referred to as (in some of those decisions, especially in the S & McL), so called “parental unilateral action”, “unilateral decision making” and “unilateral relocation”.
Similar wording is used in Campbell & Spalding as well. The decisions there all predate MRR & GR (2010) 240 CLR 461. I note what was said by the Full Court of the Family Court in Browne & Keith (2015) 55 Fam LR 208 (2015), where the Court said at paragraphs 28 and 29:-
“28 His Honour, after finding that the mother’s decision to move to Western Australia with the child was unilateral, set out extracts from the authorities relevant to the issue and then said:
112.… The case law suggests the Court should not readily grant interim relocations where there has been a unilateral relocation except in cases of emergency. This is not a matter where there is an emergency.
29 It first needs to be said that nothing in the authorities quoted by his Honour gave support for this novel statement of the law, nor, so far as we are aware does it exist in any other authority. Thus, his Honour was wrong; that is not the law. Indeed, the law is as espoused by the High Court in MRR v GR(2010) 240 CLR 461 ; 263 ALR 368 ; 42 Fam LR 531 ; [2010] HCA 4, but his Honour failed to refer to that decision in his discussion of the relevant law.”
The question of a “relocation” is something that the Court has to be mindful of in terms of making sure that the Court does not get distracted by the concept. It is of course the case that a so called “relocation case” is a parenting decision. The parties referred to a decision of Nappert & Pagel [2020] FCCA 1238, a decision that I handed down earlier in 2020. Obviously the facts in every case are different, but the parties referred to (in particular the mother did) some of the cases referred to there.
The Full Court stated in Parks & Farmer [2012] FamCAFC 12 (which of course postdates cases such as Morgan & Miles and Campbell & Spalding) at paragraph 87:-
“…whilst the court does not condone "unilateral relocations", such actions are but one of the factors which, by reference to the provisions of Part VII, are relevant to determining the child's best interests on an interim basis after a circumscribed hearing (see Goode & Goode (2006) FLC 93-286).”
The point being that any so called unilateral relocation is only one of the factors for the Court to consider. Kent J in the decision of Edgar & Strofield [2016] FamCAFC 93 at paragraph 29 was critical of the judge at first instance there. Kent J said that the judge of first instance was:
“…there distracted by the issue of “relocation”; rather than focusing upon the competing proposals of the parents in the circumstances as they existed at the time of the interim hearing, in the context of the undisputed history, so far as the appropriate interim care arrangements for the children were concerned.”
The point that I made in the Nappert& Pagel decision is that those comments by Kent J hark back to what was said by the High Court in MRR & GR at paragraph 15, where the High Court noted that when considering section 65DAA in the context of a relocation case, the Court is obliged to consider the “reality of the situation” of the parents and the child. The same considerations apply in relation to section 65DAA(1) and section 65DAA(2). In paragraph 15 of MRR v GR, the High Court stated:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
If the Court were to require the mother to come back to Queensland now the situation would be as follows (pending the trial which is to take place in six months’ time): I note that the mother owns her own home in Sydney; works in Sydney where she works in a family firm; has the benefit of that family firm arrangement, which frankly I think it’s reasonable for me to infer is beneficial to her as the primary carer of a 10 month old child. And the idea would be to transplant the mother against her wishes pending a trial, in circumstances where she is the primary carer and has made it abundantly clear she does not wish to be here but wishes to remain permanently in Sydney.
The father has spent four months in Sydney already this year and it is clear enough he would have the means to get to Sydney to see the child regularly, which is the mother’s proposal, pending the final hearing. It is only at a final hearing I will be able to make findings in relation to “will the mother support this relationship in the long term?” Should the child be living primarily in Sydney or in Brisbane? The child could only possibly stay in Sydney in the long term if the mother was supporting the relationship between the child and the father.
I am loathe to require this mother to uproot from Sydney and come up here for six months pending a trial when everything could change and she could go back. In terms of the meaningful relationship between the father and the child I have no reason to suspect there was not one between the birth of the child and the mother’s return to Sydney on 9 September. And the borders were closed, and I fully get it that it was difficult for the father to go down there until 1 December 2020 when the border opened – because to do so would have meant, on return to Brisbane, quarantining for 14 days. But the border has now been open for two weeks, and I'm not going to be critical of the father, because it is only two weeks ago and this interim hearing was pending. In terms of a meaningful relationship, it’s obviously very difficult to do it over the telephone or on FaceTime with a little child. I do not think in the circumstances of this interim hearing it’s sufficient reason to require the mother, against her wishes, to return to Queensland pending the trial of the matter, when the case reveals to me that there are sufficient resources available to the parties to facilitate time with the father regularly in Sydney pending a trial.
In terms of the meaningful relationship, it will only be maintained if travel occurs in the next six months and the father does travel to Sydney. I hasten to add I can see no reason why this father would require the presence of a member of the mother’s family to see this child. There was a reference in the evidence to, according to the mother and her own mother, something about the father perhaps feeding the child too quickly. And then an assertion that the father was perhaps letting the little one drop onto a pillow.
But I must say, first of all, I make no finding about any of that. I do not understand that to be an agreed fact. But I am not concerned for the safety of this child, and I do not consider it necessary or appropriate for a member of the mother’s family to effectively supervise the father’s time with the child when visiting Sydney. These cases where a parent lives in Sydney and a parent lives in Brisbane always end in unhappiness because someone ends up being where they don’t want to be, or someone ends up having to move when they don’t want to move. Or a child is living in a city or a town where one parent does not want them to be.
In terms of the fact that there may have been an agreement and the child had been booked into E School or F School, again, these are just some issues for the Court to take into account. They do indicate to me that the mother genuinely moved to Queensland with an intention to stay here, but on her view, on her evidence, the relationship did not take hold in terms of the living together. It did not take hold in terms of the child and the mother and the father living in the one household.
It lasted only five weeks. It is a highly unusual set of circumstances on that fact alone. A highly unusual set of circumstances on that fact alone. I do note that one of the comments made – referring back to S & McL – one of the comments made by Brown FM which was referred to, said at paragraph 77:
“…the parties’ proposals should be judged against the background of long standing arrangements for the care of the children.”

That was in the context of his Honour criticising one parent upping stumps and moving with a child or children to another location. On any view of it, it could not be said that there was a long standing arrangement. Because this child is so young, I suppose Mr Alexander is correct when he said, “There’s nothing longstanding on any aspect of this child’s life”. I do think there should be unsupervised time with the father. It should be two or three times a week whenever he wants to go to Sydney.
It should progress to overnight time before too long. I will hear further from the parties about that.
I wanted to add that obviously I am aware that it is desirable to make reference to section 60CC and the various subsections. But it is only desirable to do it to the extent that it is actually possible in a circumscribed hearing.
I have made a reference to the “meaningful relationship” and the view that I have formed is I can see no reason why it could not be said that from the time of the child’s birth until the time the mother went back to Sydney on 9 September, I can see no reason why it could possibly be said there was not a meaningful relationship between the father and the child. There obviously is a meaningful relationship between the mother and the child. We have had that three month gap now when the father has not been able to see the child but the intention of the Court will be now to put in place interim orders that permits regular time between the father and the child unsupervised which will hopefully mean the preservation and continuation of the meaningful relationship.
It follows, it seems to me, (by way of reasons) that there ought to be an order for equal shared parental responsibility. I do not consider it has been rebutted and I do not think anyone argues for anything differently. And that, of course, leads the Court into considering 65DAA in that perspective and I would have thought that some order is appropriate that permits or allows substantial and significant time between the child and the father pending the final determination of the hearing.
I would also add that I have indicated the trial will be here in May and it is obviously then desirable that there be a family report writer from Southeast Queensland. And of course, the mother and the child can come up for the interviews because I will want them conducted in person. But they ought not take place until the father has had an opportunity to spend some more time with the child before the interviews.
For the best part of seven months the father was in the child’s life. There has been a gap now which is reasonably significant given the young age of the child. I am going to impose the need for another adult from his own family to be with him at least for the first three visits, at least for the first two hours, 8am until 10am. They may want to stay; they can stay as long as they want, at least. But the only requirement is for the first two hours.
I do think that the time proposed by the mother is too limited. The mother has been successful in this interim application which was her to desire for the child to remain with her in Sydney pending the trial. The father is going to be travelling down to Sydney. I can see no reason to restrict his time in the manner that the mother would seek to restrict the time.
The father’s written proposal of time is an exhibit and the mother’s proposal of time will be copied, distributed to the parties and the original will be an exhibit. I have made some handwritten notes on the father’s proposal, it can go in with my handwriting as far as I am concerned. It is only delineating what was further explained by Mr Alexander.
I think that the 8am until 5pm should stay in place – that is 8am until 5pm during the day on a Sunday, Monday and Tuesday until the child turns one. After the child turns one, I have to say (and that is two months away – so there is two months of planning the mother can do) I am in favour of an overnight. I know there is no social science report but at some stage parents have to trust the other parent and I do think that the father is a sensible person. He has got strong family support to the extent that he would need any assistance I apprehend, and I think it is a reasonable apprehension and a reasonable inference, that he will obtain that support. He also he has family members who actually live in Sydney, I think including his own grandmother. And I think that to the extent that he will need any assistance that he will get it. But I can see no reason why a one-year old ought not to have an overnight with their father.

Overnight time

In terms of breastfeeding, I am not going into it any further. Breastfeeding, at some stage, we all know, has to begin to wind down. Now, this is a separated family. If they were together, breastfeed until they are five years old if you want, it has got nothing to do with the Court. But the Court is concerned that this father’s time has to begin (before the trial, and indeed, before the family report) to be reasonably significant and substantial so that the report writer can assess the situation. Can he look after a child? Can he look after this child? What is he like at taking care of the child overnight? I know it is untested and it is uncharted, but this family split up when this child was very little and at some stage the overnights will have to start.
From 7 February 2021, time shall be from 8am Sunday until 8am the following day – that is on the Monday. And then 8am until 5pm on the Tuesday. That will start the next Sunday after the child’s birthday. I think that that should stay in place for a month until 7 March 2021. Then it goes to 8am on Sunday until 1pm on Monday. Then from early April (which I think will be 4 April 2021) it can go to that stage where it is 8am on Sunday morning until 5pm Monday and then the following day. It is a slower progression than the father wanted, but it is certainly a lot quicker than the mother wanted.
The view that I have formed is it is going to be in the best interests of the child (because the child has not seen her father for three months now for whatever reasons, mainly, to do with COVID-19) and I do think that the times, as I have outlined them, are not unreasonable in the particular circumstances of the case.
I am well aware, and I note, this is by way of reasons – I note what has been said in paragraph 41 of the mother’s affidavit concerning care and breast feeding. And I note Ms McMillian’s instructions that that has pretty much stayed the same – what the situation is now. But the reality is that this family is separated and sometimes things need to change for children when there is a separation. In fact, every time there is a separation, things need to change for the children. I do think that the mother will take a sensible approach, put in place a plan to deal with the question of breastfeeding and the question of how to address that issue over the next period of time.
These other issues the mother raised about not letting the child’s head go under the water in the bath, checking the temperature of the bath water, being careful when wiping the child, making sure there is proper restraints – I mean, there is only so much by way of prescription that a Court should impose upon a parent. I mean, at some stage the father has to be trusted by the mother. The father’s dearest wish is for that child to come back to Brisbane and that may yet happen after a trial. These issues that have been raised – the view that I have formed on them is that more likely than not these are issues of conflict between the mother and father which I am confident that the father, to the extent that he needs to take any parental advice from – whether it is his own parents or some other family member or friend – he will do so.
I cannot imagine that any person will be smacking a child who is 10 months old, but I do not feel it necessary to make an order about it. I know there seems to have been some argument about that at one stage. The father will know that he is well and truly under the spotlight of the Court. And I am sure from what I have read that he is well and truly up to it, to make sure that there are good outcomes for the child’s time with him between now and the trial. I have indeed kept in mind the risk issues raised. I am aware of what has been raised by the mother. I do think though in the context of this case they are certainly not insurmountable issues and I do not consider that there is sufficient evidence to suppose that this father is in any way a risk to this child.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 22 January 2021