Argyros and Argyros

[2010] FamCA 842

FAMILY COURT OF AUSTRALIA

ARGYROS & ARGYROS [2010] FamCA 842

FAMILY LAW – CHILDREN – interim parenting orders – periods of time with the father – best interests of the children – s 60cc considerations

Family Law Act 1975 (Cth): ss 65DAA, 60CA, 60CC, 60B(2), 61DA(1) and 65L

MRR v GR (2010) 263 ALR 368
Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Argyros

RESPONDENT: Ms Argyros

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1771 of 2010

DATE DELIVERED: 17 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 16 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms E Boyle
SOLICITOR FOR THE APPLICANT:	Slade Manwaring Solicitors
COUNSEL FOR THE RESPONDENT:	Mr P Campton
SOLICITOR FOR THE RESPONDENT:	Mervyn Finlay Thorburn & Marshall
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms K Shea

Orders

1. That Orders are made in terms of parenting Orders 1, 2(a), 2(c)(i), 2(c)(ii), 3, 4, 5, 6, 10, 11 and 12 made by consent on 31 May 2010.

2. That an Order is made by consent in terms of Exhibit 5 as follows:

   “1.Pending further order, and save and except for medical emergency, both parties be restrained from causing either of the children [J] born […] July 2007 and [M] born […] July 2008 to be taken to a medical health practitioner or institution other than Dr [T] (general paediatrician), the [P] Medical Practice, Dr [S] if possible, or another doctor at the [P] Medical Practice.”

3. That Orders are made in terms of Exhibit 1 as amended:

   …6.That notwithstanding any other Order herein:

   6.1The children spend time with the father on the father’s birthday and Father’s Day from 9.00am to 5.00pm.

   6.2The children spend time with the mother on the mother’s birthday and Mother’s Day from 9.00am to 5.00pm.

   6.3The children spend time with the father each Easter Sunday from 9.00am to 5.00pm.

   6.4In 2010 and each alternate year thereafter the children spend from 9.00am Christmas Day to 9.00am Boxing Day with the father.

   6.5In 2011 and each alternate year thereafter the children spend from 9.00am Christmas Day to 9.00am Boxing Day with the mother….

   9.That each party shall give the other party prior notice of all medical and allied health care professional appointments for the children and of the names and contact details of all such treating professionals.

   10.That the party who has the children in his or her care on the day of any appointment with a treating health professional shall take the child or children to that appointment.

   11.That each party be authorised to receive any information regarding the children from any of the children’s treating medical or allied health professionals, and to make separate appointments with such professionals (at their own expense), upon provision of a copy of these Orders.

   12.The mother and father shall each notify the other as soon as possible if the child/ren suffers any serious injury or illness whilst in his or her care and provide details of such injury or illness….

   16.That the parents communicate with each other regarding the children in the following manner:

   16.1For urgent matters, by telephone and/or text message.

   16.2For non-urgent matters, by email and/or by implementing a communication book which shall pass between the parties at changeovers.

   17.That each parent keep the other informed of his or her current telephone contact number at all times.

   18.That each parent keep the other informed of his or her current residential address and provide at least seven days written notice to the other of any intended change to such addresses.

   19.That the parties shall do all things necessary to engage in a parenting education or support program as identified by the independent children’s lawyer, and upon completion of such program shall provide the other party and the independent children’s lawyer with proof of such completion.

   20.That the parties shall each enrol within 14 days with a conflict resolution course as identified by the independent children’s lawyer, and upon completion of such course shall provide the other party and the independent children’s lawyer with proof of such course.

   21.That upon completion by both parties of the course referred to in Order 20 herein the parties shall do all things necessary to engage in mediation with a family dispute resolution practitioner at a time and venue to be arranged by the independent children’s lawyer for the purpose of addressing matters regarding the children’s day to day parenting including consistency of routine, boundary setting and discipline, and meeting the children’s needs.

4. That the Regional Co-ordinator Child Dispute Services in the Sydney Registry of the Court or her nominee provide both or either of the parties with such assistance as is reasonably requested by that party in relation to compliance in the carrying out of all or any of the parenting orders made this day.

5. That the hearing of the substantive proceedings including the listing of this matter for the first day of the Less Adversarial Trial practice and procedure be expedited and for that purpose the solicitors for the parties shall approach the Team Leader Judicial Services as soon as possible.

6. That pursuant to s 62B and s 65DA(2) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Annexures A and B annexed to these Orders.

7. That subject to the Orders made this day all outstanding interim applications for parenting orders are dismissed.

NOTATION:

A.A written undertaking was given to the Court on 31 May 2010 by the paternal grandmother.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1771 of 2010

MR ARGYROS

Applicant

And

MS ARGYROS

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings interim parenting orders were sought by the father pursuant to his Amended Initiating Application filed 27 May 2010.

2. Amongst the orders sought included an order for equal shared parental responsibility, orders for equal time to be spent by the parties with each of their children, as well as orders directed to other specific occasions.  That application was amended unopposed by the minute of orders sought in Exhibit 2.  The substance of the orders so sought was an order requiring the mother to notify the father in the event of her taking the children away overnight in certain circumstances.

3. Subsequently, during the course of the hearing it was made clear by counsel for the father that the orders that he sought were, in substance, those sought by the independent children’s lawyer as set out in Exhibit 1.  That is, that the children primarily live with the mother, but that there be an increased number of nights that they spend with the father compared to those periods otherwise specified in the orders made by consent on 31 May 2010 (which I shall refer to as “the consent orders”).

4. The mother opposed the orders sought by the father by her Response filed 3 May 2010.  The orders that she sought were that the children live with her and spend periods of time with the father occupying half a day twice a week.  Ultimately, the mother, by her counsel, supported the continuation of the consent orders.

5. The independent children’s lawyer sought orders in accordance with Exhibit 1.

6. At the commencement of the hearing the independent children’s lawyer informed me that an order for equal shared parental responsibility would be sought.  After this was there was some discussion as to the legal implications of such an order being made in view of the High Court’s recent decision in MRR[1] and the application of s 65DAA, no such order was then sought.

   [1] MRR v GR(2010) 263 ALR 368

7. The parties to these proceedings cohabitated for a period of approximately four and a half years which commenced in about August 2005 and continued until they finally separated on 12 February 2010.  They have lived separate and apart from each other continuously since that time.

8. The parties married in 2006.

9. In view of the date of separation it follows that no application has been made for a divorce certificate.

10. The father is 35 years of age.  He is self-employed.  The father resides at Y in the home of the paternal grandmother.

11. The mother is 32 years of age.  The mother is engaged in home duties and resides with the two children in premises in E.

12. The children of the parties are:

    (a)J who is three years of age having been born in July 2007

    (b)M who is two years of age having been born in July 2008.

13. The paternal grandmother conducts a family day care business at her home at Y.  Her occupation is that of family day care worker.

Historical background

1. The following are further relevant and brief historical matters which are uncontroversial.

2. On 24 February 2010 an apprehended violence order was made in the Local Court against the father for the protection of the mother and the two children for a period of 12 months.

3. On 31 March 2010 by agreement between the parties the father commenced spending time with the two children on Wednesday and Saturdays from 9.00am to 12.00pm supervised by an employee of a private supervision company.

4. On 19 April 2010 interim parenting orders and directions were made by consent.  Those orders provided for the two children to live with the mother and the father to spend time with them on a supervised basis each Wednesday and Saturday between 9.00am and 12.00pm.  The supervisor for that purpose was an employee of a private supervision company.  Changeover of care of the children from one parent to the other was to occur on Wednesday at the paternal grandmother’s home and Saturdays at McDonalds at O. An independent children’s lawyer was appointed.  Other directions were made.

5. On 7 May 2010 the parties attended a child dispute conference with Ms W, family consultant.  Unfortunately, agreement was not reached.

6. Consent orders were made on 31 May 2010.  Amongst the orders made included the appointment of Dr L, child and family psychologist, as single expert witness for the purpose or inquiring into and reporting upon the matters referred to in the orders so far as they related to the welfare of the two children.  In addition, orders were made that the two children live with the mother subject to such periods that were specified in the orders that they were to be in the care of the father.  Those periods included 10.00am to 5.00pm each Wednesday, 10.00am to 5.00pm Sunday for five weeks and commencing on 10 July 2010 each alternate week from 10.00am Saturday until 11.00am Sunday, and in the other week from 10.00am Friday until 11.00am Saturday.  The changeover of care of the children was to take place as between the parties or the mother’s nominee at the beginning of the father’s time at the gate entrance to the paternal grandmother’s home.  The children were to be then returned to the mother at the driveway entrance to that home.  Further orders were made in relation to medical matters so far as the two children were concerned.  The Court noted the undertaking given by the paternal grandmother that she be present and to assist the father, if necessary, in the care of the two children at her home.

7. Dr L provided a detailed report dated 1 August 2010 which became Exhibit 3 in the proceedings.

8. Dr L provided a supplementary report by way of answers to specific questions dated 3 September 2010 which became Exhibit 4.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

1. As the Full Court has emphasised in Goode v Goode[2] the relevant legal principles and considerations in Part VII of the Act apply whether the parenting proceedings are final proceedings or interim proceedings.

   [2] Goode v Goode (2006) FLC 93-286

2. Section 60CA of the Act makes it clear that in deciding whether or not to make a parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. For the purpose of determining what is in the child’s best interests, I am required to consider matters in ss 60CC(2) and 60CC(3).

3. So far as principles and objects which are set forth in s 60B(2) are concerned, it is important to emphasise that there is a significant exception to the principles that underlie those objects. That exception is when it is or would be contrary to a child’s best interest.

4. In my experience that exception is often glossed over or overlooked by parties who are anxious as to the time that they might spend with their child or children and the circumstances in which that may take place.

5. Section 61DA(1) provides a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. As I previously observed, ultimately neither of the parties nor the independent children’s lawyer sought an order in those terms.

7. Consequently, the presumption applies, but I do not have to consider what is colloquially referred to as “equal time” pursuant to s 65DAA as an order is not likely to be made in the proceedings before me.

8. Indeed, neither party sought an order for equal time.

9. In addition, neither party sought an order nor specified any ground upon which an order could be made that the presumption to which I have referred should be rebutted or not apply.

10. Section 60CC(1) makes it clear that for the purpose of determining what is in a child’s best interests, I am required to consider what are described as primary considerations as well as additional considerations.

11. The exception is found in s 60CC(5) where an order is sought by consent. For obvious reasons that is not relevant in these proceedings.

12. The primary considerations are:

    “(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.”[3]

    [3] Section 60CC(2)

Matters pursuant to section 60CC

1. I make the following findings of fact in relation to relevant and factual matters that underpin the additional considerations referred to in s 60CC(3) and such findings will, of course, be relevant to the consideration of the matters referred to as primary considerations.

2. So far as the particular matters to which I will refer, they will be consistent with the manner in which the interim proceedings were conducted before me by counsel.  With respect to them, I consider that the matters to which they referred and attach weight in their submissions were entirely proper in all of the circumstances.

3. I should emphasise that the very nature of the practice and procedure followed in interim parenting proceedings are that the proceedings are necessarily truncated in that cross-examination does not take place in relation to all factual matters raised by the parties and, as a result, the reasons for judgment are curtailed.

Views expressed by the children and other relevant factors

1. I agree with the submission made by counsel that given the very young ages of the two children it was difficult to discern any direct expression of views.  Indeed, it is equally difficult to attach “weight” regardless of how those views may have been inferred.

2. It is not a matter of dispute that the parents have a loving relationship with the two children.  I infer from that, and especially in view of the expert evidence of attachment that the children have with the parents, that there is a view by the children to spend time with each of them.

Nature of the relationship with the children with each of the parties and other significant persons

1. I accept the evidence to which I have referred that the parties have a loving relationship with each of the two children and that they also have, at a minimum, a close relationship with the paternal grandmother and no doubt, at least, a fond relationship with members of the mother’s extended family.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the children and the other party

1. There is no issue that, at least on an interim basis, the two children should primarily live in the care of the mother.  There was also no issue that the two children continue to spend periods of time with the father.  The real issue was the extent of such periods of time and the circumstances in which such periods should take place.

2. The mother’s case is that the consent orders should not be departed from given what she contends to be difficulties in the father’s personality which may be manifested in the care that he exercises of the children, particularly for extended periods of time.

3. The father’s case is that he has a loving relationship with the two children and that, in effect, any difficulties in his behaviour are historical and have as its foundation the breakdown in the relationship between the parties.

4. Accordingly, I find that each of the parties have a willingness and ability to facilitate a continuing relationship between the two children and the other party.

5. The real issue is whether there should be a closer relationship as between the father and the two children.  That in turn will be informed by the findings that I make in relation to the capacity of the parties to provide for the emotional needs of the two children, to which subsequent reference will be made.

The likely effect of any changes in the children’s circumstances including the likely effect on the children of separation from party with whom the children have been living

1. So far as the likely effect of any changes in the circumstances of the two children in terms of being separated from the mother, that factor is linked with the findings of their respective capacities to provide for the emotional needs of the two children, to which subsequent reference will be made.  I will consider the effective changes in the light of those findings when I provide my conclusion.

Practical difficulty and expense of the children spending time with and communicating with a parent and the effect on the children’s right to maintain personal relations and direct contact with both parents on a regular basis

1. There is no practical difficulty and expense of the two children spending time with and communicating with a parent.  Indeed, that was not the subject of any submissions.

The capacity of each of the parties to provide for the needs of the children including emotional and intellectual needs

1. The capacity of the parties to provide for the needs of the two children, including emotional and intellectual needs, are very much at the forefront of the evidence in the proceedings so far as emotional needs are concerned.

2. There was no issue raised as to the capacity of each of the parties to provide for the physical needs of the two children with regard to an appropriate physical environment.  Nor was any matter of substance raised regarding the capacity of each of the parties to provide for intellectual needs.

3. So far as the emotional needs are concerned, in the context of the capacity of the father, this is a matter of some complexity.

4. On the one hand the father undoubtedly has a loving relationship with the two children, previously referred to.  The father is sincere in wanting to extend the periods of time that the children have in his care.  However, there are disturbing aspects of his personality, the subject of Exhibit 3, against a background of evidence of the mother in relation to matters of family violence and abuse, and a controlling personality underscored by obsessional compulsive behaviour.

1. I hasten to add at this point that neither the mother nor father were cross-examined in relation to those matters and leave was not sought to do so.  That is consistent with the approach that is taken in interim proceedings where there is only a limited period of time available for the hearing of such an application.  Unless the parties are able to reach some compromise on a constructive, sensitive basis for the future care of their two children, then the likelihood is that these distressing aspects will be the subject of greater exploration at a final hearing.

2. Dr L, in Exhibit 3, provided a detailed report following upon interviews with the parties and the two children.  His report is such that it appears to accept that on the balance of probabilities, although those are not the words that he used, the father does have obsessional traits and instances of obsessional behaviour to a degree that warrants comment, appear in different parts of his report.

3. In addition, the father was found by Dr L to be a person who is prone to high levels of anxiety.  With regard to his emotional health, he has consulted over some months a psychologist to help him cope with not only the breakdown of the marriage relationship and less involvement with the care of the two children, but also the manner in which he may in fact be in better control of his own personality tendencies.

4. The father was also found to be a person who, at least for the time being, is somewhat a dependent person, who prefers to implicitly have the paternal grandmother around at times when he has the care of the two children.  That is not a reference to the father’s detriment, and in some circumstances may be to his credit, but nonetheless it is a factor in terms of his coping ability which was of a degree that necessitated Dr L to comment in relation to it in Exhibit 3.

5. Dr L also found, so far as each of the parents are concerned, as follows:

   “The current situation is a difficult one, with neither parent revealing much insight into the impact their own behaviour will have on their children.”

6. The defining issues of this family are the problematical personality traits evident in both parents, although neither parent has an obvious mental health disorder, and the peculiar splitting which has occurred such that each parent is closely aligned with one child and somewhat distant from the other.  So far as the mother’s capacity to provide for the emotional needs of the child, it seems that she has also displayed considerable anxiety and suffering from the effects of the marriage breakdown and what she contends to be family violence and abuse perpetrated at the hands of the father.

7. As a result, I find that each of the parties have a qualified capacity to provide for the emotional needs of the two children.

Any family violence involving the children or a member of the children’s family

1. So far as family violence and family violence orders are concerned, an apprehended violence order has been made, to which there has been earlier reference.

2. There have been allegations of family violence and abuse by the father to the mother, corroborated to some extent by the very nature of there having been an apprehended violence order for a term of 12 months, and in addition the reference in Exhibit 3 to Dr L’s opinion that the father may have difficulty at times in appropriate regulation of his anger and temperament.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children

1. With regard to the preference to make an order least likely to lead to the institution of further proceedings in relation to the two children, I have taken into account that the two children need stability and routine, especially the eldest child who has had professional assistance to further his developmental skills and to provide positive improvement with regard to perceived behavioural problems.  Those matters are set out in more detail in Exhibits 11 and 12, which I have taken into account.

Conclusion

1. I have concluded that orders will be made which in substance continue the interim parenting orders, the subject of the consent orders.  In addition, there will be orders as sought by the independent children’s lawyer, not the subject of opposition, which provide for specific occasions of time to be spent by the children with each of the parties, such as on birthdays, Christmas Day, Boxing Day and Easter Sunday.

2. In addition, there will be orders made in relation to improved communication between the parties so far as health matters are concerned, and for the parties to engage in an appropriate parenting program as sought by the independent children’s lawyer.

3. My reasons for determining that those orders will be made are substantially as follows.

4. It appeared to be common ground that the parties have poor communication and that poor communication belies the continuing conflict between them arising no doubt out of the breakdown of the marriage, the allegations of family violence and abuse, as well as from the father’s perspective, the mother not being as focused as she should be in terms of the care of the two children.

5. The reports of the professional supervisor in evidence before me make it clear that on the occasions when she supervised periods of time that the two children spent in the care of the father, all things considered, they had a happy time and were appropriately cared for.  There was one reference to aspects of the father’s obsessive behaviour which is linked to the issued raised in Dr L’s report, the first of which was his insistence to the supervisor that she make a note of a fading bruise which, in the opinion of the supervisor, was consistent with bruising that small children may gain in the normal course of events during play.  In addition, the father’s apparent need to drive close to the point of changeover then taking place at a petrol station in order to observe the mother, the children and perhaps the supervisor which demonstrates continuing, worrying aspects of obsessional behaviour.

6. The two children have apparently settled into the routine which is consistent with the terms of the consent orders that were made.  The question that arises is whether it is in their best interests for those periods of time to be extended with or without the type of general supervision that is provided by the paternal grandmother.  All things being equal, the answer would surely have been in the affirmative.  However, I accept and give much weight to the opinion expressed by Dr L in Exhibit 3 under the sub-heading “Recommendations”.

7. Dr L provided, in essence, for an increased pattern of time that the children might spend in the care of the father.  However, Dr L did emphasise that for such periods of time to be of benefit for the two children, a platform must be created.  For that purpose Dr L stated as follows:

   “For this to work, each parent must agree to some basic rules such as routines at home around managing behaviour, setting limits and whatever program might be set up if necessary.”

8. I pause here to reflect upon the desirability of such an approach, especially for J, who has particular needs, in terms of being encouraged by his parents, no doubt in an atmosphere of no tension and anxiety, so that progress will continue to be made for his development skills and positive behaviour.  Whilst Dr L did not link the two, it seems to me that can be inferred by a combination of Exhibits 3, 11 and 12.

9. During the course of his oral evidence, Dr L emphasised that the question of time with a parent is not the most important aspect.  The critical matter is how that time is utilised in a way which benefits the children.  That does not mean it is a self-centred approach where each parent has worked out that they will care for the child as he or she thinks fit.  Rather, it is that there be some consistency for the benefit of the two children.  After all, I am required to make orders that are in the best interests of the child, not the best interests of the parent.

10. That is not to say that parents’ interests are unimportant, quite the contrary.  However, the focus is on the best interests of the child.  That would suggest, without argument, that whatever else the parties are focused on in terms of what divides them, intelligent educated people who have a loving relationship with their two children and claim to be devoted to their best interests can surely have the maturity and responsibility to put aside real or imaginary grievances and attempt to work together, if necessary, with the assistance of an appropriate professional to reach agreement on what Dr L referred to as basic rules, previously quoted.

11. It cannot be in the best interests of the two children to extend the periods of time as some type of experiment whilst the parties one day might get around to discussing and hopefully reaching agreement about such basic rules.  Commonsense would dictate that such basic rules, such as routines, setting limits and management of behaviour, should be agreed upon first.  If that is done, the probabilities are that the children will then have the benefit of a meaningful relationship with each parent, which is one of the prime considerations.

12. In addition, especially where the father is concerned, if he undertakes professional assistance to overcome his obsessional traits and is better able to regulate his anger or temperament, as referred to in Dr L’s report, then a more solid basis will be established for greater periods of time that the two children might spend in his care which, having regard to other matters, is likely to be for their benefit.

13. Consequently, I have accepted the application of the independent children’s lawyer to make orders which require the parties to engage in appropriate programs on the terms that will be set out in the orders.

14. I have also determined that an order will be made under s 65L so the parties might also have the benefit from time to time of guidance from an appropriate family consultant. This matter was raised with counsel and they joined in an approach that will see such an order being made.

15. Clearly, it is in the parties’ interest to have improved and constructive communication so far as any medical treatment or examination is concerned for the two children.  Appropriate orders will be made.  I was asked to make an order by consent regarding the particular medical practitioners who may be consulted so far as the children are concerned.  That order will also be made.

16. It is obvious to me that the longer this litigation remains pending, the more likely it is that issues will continue to arise, rather than the parties being focused on improved communication and co-operative parenting.

17. Consequently, I will make an order that the substantive proceedings be expedited with an additional order requiring the solicitors for the parties to approach the Team Leader, Judicial Services so that the earliest day for the first day of the Less Adversarial Trial practice and procedure can be fixed

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 17 September 2010.

Associate: 

Date:  23 September 2010