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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading APOSTOLOS & DIMAKIS

Details

AGLC: APOSTOLOS & DIMAKIS [2020] FCCA 3603
Case: [2020] FCCA 3603
Decision Date: 14 December 2020

CaseChat Overview and Summary

This matter concerned an interim hearing in the Family Court of Australia, presided over by Judge Howard. The parties, a father residing in Brisbane and a mother residing in Sydney, presented competing proposals regarding the care of their infant child. The central dispute revolved around the child's living arrangements and the extent of the father's time with the child, particularly in light of the mother's relocation to Sydney.

The court was required to determine the interim parenting arrangements for the child, focusing on the child's best interests. Key legal issues included the assessment of the "meaningful relationship" between the father and the child, the impact of the mother's relocation on the child's arrangements, and the application of principles concerning equal shared parental responsibility and substantial and significant time with each parent. The court also considered the desirability of family reports and the location of interviews for such reports.

Judge Howard reasoned that there was no long-standing arrangement for the child's care, given the child's young age and the recent relocation. The court found that a meaningful relationship existed between the father and the child prior to the mother's move to Sydney and that interim orders should facilitate the preservation and continuation of this relationship. The court determined that equal shared parental responsibility was appropriate and had not been rebutted, leading to the consideration of section 65DAA of the *Family Law Act 1975* (Cth). The court emphasised that a unilateral relocation is merely one factor among many to be considered in determining the child's best interests on an interim basis, referencing *Parks & Farmer* [2012] FamCAFC 12. The court also highlighted the High Court's guidance in *MRR v GR* (2010) 240 CLR 461, stressing the need to consider the "reality of the situation" of the parents and child when assessing the practicality of equal time arrangements.

The court ordered that the parties provide a draft order reflecting the reasons for judgment. The court indicated that unsupervised time with the father should occur two to three times per week in Sydney, progressing to overnight time. A family report writer from Southeast Queensland was to be appointed, with interviews to be conducted in person in Queensland after the father had spent further time with the child. The father was required to have another adult from his family present for the first three visits, for the initial two hours of each visit.

Orders

Orders of the court

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

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.”

Ratio Decidendi

Legal Principle Established

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