FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asterios & Asterios [2024] FedCFamC2F 26
File number(s): PAC 5992 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – CHILDREN – Where the matter proceeds undefended as against the mother – Where the father seeks that the parties have equal shared parental responsibility and the children live with the parties on an equal shared care arrangement- Where the Independent Children’s Lawyer seeks orders that the mother be allocated sole parental responsibility and spend time with the children at the mother’s sole discretion- Where the subject children are six and two years of age – Where the children have not spent substantial time with the father since October 2022 – Where the father’s criminal antecedence gives rise to a concern as to his ability to self-regulate – Where the father has some form of relationship with the children –Where the mother did not acknowledge the authority of the court and did not attend with the children for the purposes of the preparation of the Family Report nor appear at the final hearing- Where both parties present a risk of harm to the children – Where the risk of harm posed by the father can be sufficiently ameliorated - Where it is found that the father spending time with the children may act as a mitigating factor to any risk of harm arising to the children in the mother’s care. Where orders are made for the children to spend short periods of graduating time with the father. Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 61DA(1), 65DAA, 65DAC, 68B
Cases cited: A & Z [2006] FamCA 179
Blinko & Blinko [2015] FamCAFC 146
Gorman & Huffman & Anor [2016] FamCAFC 174
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Moose & Moose [2008] FamCAFC 108
Division: Division 2 Family Law Number of paragraphs: 182 Date of hearing: 30 October– 31 October 2023 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person (did not participate) Counsel for the Independent Children’s Lawyer: Mr Silva Solicitor for the Independent Children’s Lawyer Mason Mia & Associates ORDERS
PAC 5992 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ASTERIOS
Applicant
AND: MS ASTERIOS
Respondent
INDEPENDENT CHILDRENS LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.All prior parenting orders relating to the children X born in 2017 and Y born in 2021 (“the children”) are discharged.
Parental Responsibility
2.The Mother shall have sole parental responsibility for making decisions for the children and is to notify the Father by email within 7 days of making such decision.
Live With
3.The children shall live with the Mother.
Time With the Father Commencing with Private Supervision
4.Within 7 days of the date of these Orders the Father is to nominate in writing to the Mother his chosen…
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CaseChat Overview and Summary
The court needed to weigh the potential risks posed by both parents against the benefits of the father's involvement in the children's lives. Despite the father's criminal record raising concerns about his ability to self-regulate, the court recognised that supervised contact with him could mitigate the risks associated with the mother's care. Given both parents' risks, the court determined that the father's involvement, under certain conditions, could positively influence the children's welfare. Consequently, the court ordered that the children spend increasing periods of time with the father, starting with supervised visits and gradually transitioning to unsupervised contact, contingent on the father's compliance with specified conditions.
The court's orders reflect a balanced approach, prioritising the children's best interests by ensuring their safety while allowing for the father's involvement. The mother was granted sole parental responsibility, and the children were to primarily reside with her. The father's contact with the children was initially supervised, either by a private supervisor or at a contact centre, depending on his compliance with certain prerequisites. Over time, the frequency and duration of the father's unsupervised visits with the children were to increase, provided he met specific conditions, including drug testing and completion of a behavioural change program. The court also imposed injunctive orders to protect the children from harm, including restrictions on substance use and contact with a specified individual. Both parents were required to share information about the children's schooling and to share the costs of the Independent Children's Lawyer. The final orders discharged all prior parenting orders and detailed the specific arrangements for parental responsibility, living arrangements, and contact with the father.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. All prior parenting orders relating to the children X born in 2017 and Y born in 2021 (“the children”) are discharged.
Parental Responsibility
2. The Mother shall have sole parental responsibility for making decisions for the children and is to notify the Father by email within 7 days of making such decision.
Live With
3. The children shall live with the Mother.
Time With the Father Commencing with Private Supervision
4. Within 7 days of the date of these Orders the Father is to nominate in writing to the Mother his chosen form of private supervisory agency to supervise the children’s time with him (“the private supervisor”).
5. Upon the father complying with such notification requirement pursuant to Order 4 above the children are to spend time with the Father supervised by the private supervisor as follows-
(a) for a period of six months, from 10:00 am – 12 noon each alternate Sunday with the first such occasion to be the first Sunday after the Father’s compliance with Order 4; and
(b) thereafter and until the Father has complied with Orders 12 and 14 below from 10:00 am – 1:00 pm each alternate Sunday.
6. The Father is to be liable for any and all costs associated with the private supervisor.
Time with the Father Commencing at a Contact Centre
7. In the event that the Father does not provide notice in accordance with Order 4 above that his time with the children is to commence supervised by a private supervisor, the children shall spend time with the Father at B Contact Centre (“the Centre”) as follows-
(a) for a period of six months on each alternate Saturday for two hours with such time to be supervised by the Centre and the first such occasion to occur on the first Saturday the Centre is available to provide such supervised time; and
(b) thereafter and until the Father has complied with Orders 12 and 14 below for three hours each alternate Saturday.
8. To facilitate the above Order:-
(a) The Mother and Father are to contact the convenor of the Centre by not later than 4:00pm on 13 February 2024 to arrange the earliest possible intake interview and do all such things, sign all documents and give all consents necessary to enable the convener of the Centre to assess whether or not they can provide supervised time with the service.
(b) The Father is to be liable for all costs associated with the children’s time with him pursuant to Order 7, including but not limited to any fees charged by the Centre.
(c) The Mother shall deliver the children to and collect the children from the Centre at the times specified by the Centre and on each occasion shall promptly leave the building and the vicinity, unless requested to remain by a staff member of the Centre.
(d) The Father must not attend the Centre or its vicinity before the time with the children is to start and must promptly leave the Centre and the vicinity at the time the time with the children is to end.
(e) If the Centre during the currency of these Orders declines or is unable to continue to provide its services, or the Director of the Centre recommends in writing to the parties a variation of these Orders, then either party or the Independent Children’s Lawyer may on seven days written notice to the other party and the Court restore the matter to the list.
(f) In the event that the Centre offers supervised time only at times which are less regular than specified in Order 7, then contact shall occur at the times that are offered by the Centre.
Time with the Father – Graduated and Unsupervised
9. Subject to the father’s compliance with Orders 12 and 14 below the children shall spend time with the father:
(a) for a period of three months each alternate Sunday from 10:00 am to 12:00 pm with the first such occasion to occur the first Sunday after the Father’s compliance with the said orders;
(b) thereafter for a period of three months from 10:00am to 2:00pm each alternate Sunday;
(c) and thereafter from 10:00am to 4:00pm each alternate Sunday.
10. If the children are not already in the care of the Father, the children shall spend time with the Father commencing on 1 January 2025 as follows:
(a) from 10:00am to 4:00pm on Easter Saturday each year;
(b) from 10:00am to 4:00pm on Father’s Day each year; and
(c) from 10:00am to 4:00pm on 26 December each year.
11. The children’s time with the Father pursuant to these Orders will be suspended each year on the weekend that Mother’s Day falls.
Hair Follicle Testing
12. Prior to the children’s time with the Father moving to unsupervised time pursuant to Order 9 above the father is to make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector and chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:
(a) The Father shall provide a hair sample under chain of custody conditions for the purpose of hair analysis drug testing, such testing to be for a period of three (3) months immediately prior.
(b) The Father shall ensure that prior to such testing he shall maintain sufficient hair length in order for the testing to be carried out.
(c) The Father shall do all acts and attend all necessary appointments to facilitate this order and shall be responsible for the cost of the testing required by this order.
(d) The Father shall provide a copy of his hair follicles test results to the mother.
13. In the event that the Father’s hair follicle test results are positive for any illegal drugs or substances the children’s time with the Father shall continue to be supervised in accordance with Orders 4 – 8 above until such time that the Father produces a negative hair follicles test for a continuous period of three (3) months immediately prior.
Men’s Behavioural Change Program
14. The Father shall within 7 days of the date of these Orders do all acts and things necessary including phoning C Centre to engage and complete within a reasonable time the “Taking Responsibility – A Course for Men” and shall provide written evidence of completion of that course to the Mother and to the Independent Children’s Lawyer.
The Provision of Information
15. Within 7 days of the date of these orders the Mother is to:-
(a) advise the Father by way of email details as to the children’s current school; and
(b) provide to the children’s school authority for the Father to contact the school and the Father be at liberty to request they provide him with copies of any school reports, reports on behavioural issues, and school circulars or notices.
Injunctive Orders
16. That each party is restrained from:-
(a) consuming any prescription medication other than as prescribed;
(b) consuming any illicit substance when the children are in their respective care and for a period of 24 hours prior to such time taking place;
(c) physically disciplining the children or permitting any other person to do so; and
(d) denigrating the other parent or the other parent’s extended family in the presence of the children.
(e) discussing the Court proceedings with or in the presence or hearing of the children or allowing any other person to do so.
17. The father is restrained from allowing the children to come into contact with Ms D.
Costs of the Independent Children’s Lawyer
18. Within 60 days the Father and the Mother each pay the sum of $7,834.75 to Legal Aid New South Wales being the costs of the Independent Children’s Lawyer unless a waiver has been granted to them by Legal Aid New South Wales.
19. The Independent Children’s Lawyer serve a sealed copy of these orders and reasons upon the Respondent Mother within 14 days and file an Affidavit of Service with respect to same.
20. The appointment of the Independent Children’s Lawyer will be discharged upon compliance with order 19 above.
Disposition
21. All outstanding applications and responses thereto are otherwise dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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