Beazley and Andreopolis

[2014] FamCA 84

FAMILY COURT OF AUSTRALIA

BEAZLEY & ANDREOPOLIS [2014] FamCA 84

FAMILY LAW – CHILDREN – Father restrained from approaching either of the children or their schools without the written consent of the mother

Family Law Act 1975 (Cth)

APPLICANT: Ms Beazley

RESPONDENT: Mr Andreopolis

FILE NUMBER: SYC 3471 of 2010

DATE DELIVERED: 3 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 3 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hausmann

SOLICITOR FOR THE APPLICANT: Kennedy Hatton Solicitors

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Order 18 made 12 June 2009 is discharged.

2. Orders 2.1, 2.8, 2.9, 2.10, 2.11 and order 3 made 8 November 2010 are discharged.

3. The respondent father be restrained from approaching either of the children, namely C born … June 1998 and T born … July 2001, including approaching the children’s respective schools, without the written consent of the applicant mother or order of the court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beazley & Andreopolis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3471 of 2010

Ms Beazley

Applicant

And

Mr Andreopolis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the mother has filed an Initiating Application on 4 October 2013. In that application she seeks a discharge of orders allowing face to face time and telephone contact between the two children C born in June 1998 and T born in July 2001 (“the children”) and their father. Those orders that were made on 12 June 2009, (particularly order 18, and certain orders made on 8 November 2010, particularly orders 2.1, 2.8, 2.9 and 2.10 and order 3). Further, the mother seeks that the father be restrained from approaching either of the children, including approaching the children’s respective schools without written consent of the applicant mother or of the court.

2. Order 18 of 12 June 2009 was the original order that the children were to have telephone contact with their father each Thursday and Sunday at specified times and on specified conditions, including the mother’s monitoring of that telephone call. That order was varied by order 3 made 8 November 2010 which permitted additional telephone contact on Mondays and varied the period of time when telephone calls were to take place. Orders 2.1, 2.8, 2.9 and 2.10 all relate to the children having face to face time with their father.

3. The mother also seeks a discharge of order 2.11 made 8 November 2010 which relates to the father providing written notice as to his current address and changes to his address from time to time.

4. The background to the matter was that the parties were married in December 1997 and separated on 7 March 2004. In June 2009, there were final parenting and property orders made by Justice Le Poer Trench following a defended hearing which provided, amongst other things, for sole parental responsibility to the mother and supervised time with the father on alternate Sundays. The father appealed the order that was made at the end of that hearing in June 2009 and that appeal was settled in November 2010 where an open ended order for supervision was agreed by consent to be confined to a further 18 months, after which period the face to face time between the children and their father would become unsupervised. That period expired in July 2012 and at that time the father’s time with the children did become unsupervised.

5. The mother’s initiating application was forwarded to counsel who apparently has a direct brief for the father, Mr Peter Batey, on 15 October 2013. On 23 October 2013 Mr Batey wrote a letter to the mother’s lawyers which is annexure A to the affidavit of Meredith Hatton sworn 22 January 2014. The effect of that letter is firstly, the father, through his lawyer, places on the record that he denied the substance of all allegations that arise from evidence in the mother’s affidavit which she filed on 4 October 2013 and which she relies upon in this final undefended hearing and secondly, informs the mother that, for reasons set out in that letter, he intended not to participate in the proceedings and that the proceedings from his point of view could proceed on an undefended basis but at no stage should it be represented that he condoned what he alleges the mother has done by bringing this application. He sets out his reasons for his non participation in these proceedings and in particular, his assertion that he did not wish his children to be placed through what the father thought would be the traumatic assessments involved in further proceedings and comfortable in the knowledge that the children had attained an age where they will ultimately soon make a decision for themselves in relation to their future relationship with each of their parents.

6. So the father’s position is that he neither opposes nor consents to the orders sought by the mother. It is clear that he has an explicit intention not to file any material in response to her application. It is also clear from further correspondence between Mr Batey and the mother’s lawyers, that the father is aware of the matter being before the court today and aware that the matter would in all probability be dealt with on an undefended basis today.

7. The mother’s affidavit sets out what has happened since the children’s face to face time with their father became unsupervised in July 2012. Initially the children saw their father each alternate Sunday between 10am and 4pm at a warehouse in a southern Sydney suburb and the children were taken there by a private driver employed by the mother and picked up by that person and taken home again. The mother says that during 2012 the children were usually relaxed and talkative following times spent with their father and his current wife Ms ZZ and the mother felt reassured by Ms ZZ’s presence when the children were there unsupervised with the father.

8. The mother says however that by January 2013 both children were less positive and were complaining about various aspects of spending time with their father. The mother gives specific evidence of statements made to her by both children following their time with their father on 27 January 2013, 10 February 2013, and 24 February 2013. The children complain of physical and emotional abuse by the father.

9. The mother says that on 26 February 2013 she took both children to see Dr YY. Dr YY’s notes are annexure C to the mother’s affidavit. Those notes disclose that on 26 February 2013 Dr YY had an extensive conference with both children without the mother being present. The doctor’s notes are corroborative of the evidence the mother otherwise gives as to what the children were saying at that time, in relation to physical and emotional abuse by the father.

10. All that happened after that is not entirely clear on the mother’s affidavit evidence, but two things seem to have happened. The mother embarked upon a course of attempting to negotiate through the lawyers and then by way of mediation with Mr XX for some alternate arrangement which would provide some solution to problems which the mother said the children faced. The mother says there was an agreement reached that there be a moratorium in respect of the children seeing their father on the basis that he would spend time with them for two hours a week at a restaurant and during that time they would see a psychiatrist so that a report could be prepared in relation to their views. That purported agreement, however, if it existed at all, was repudiated by the father’s lawyers shortly after it was said to have been made.

11. It does appear that the children did see their father on occasions at a restaurant. Again, although it is not entirely clear, it seems that the last occasion the children saw their father face to face was on 21 July 2013. The mother continued to attempt to resolve the matter and ultimately filed the current application on 4 October 2013.

12. I am satisfied that any requirement under the principles referred to in Rice v Asplund and subsequent cases that there has been a significant change from circumstances that existed at the time consent orders were made by way of settlement of the appeal in November 2010. Those circumstances are:

    12.1.The new allegations of physical and emotional abuse outlined in the statements made by the children to their mother;

    12.2.The views of each of the children in relation to them spending face to face time with their father.

13. Turning to the matters that I need to consider under the statute, C is aged almost 15 ½ and T is aged approximately 12 ½ years. Normally it would be to their benefit to have a meaningful relationship with both their parents but that primary consideration needs to be balanced against the other primary consideration which needs to be given more emphasis and that is, the need to protect them from physical and emotional abuse. The consideration referred to in s 60CC(2)(b) Family Law Act is to be given greater weight than the s 60CC(a) considerations and in the circumstances of this case, is an important and weighty matter.

14. The other weighty consideration arises from s 60CC(3)(a) of the Act. The children’s views should be afforded substantial weight given their ages and level of maturity. They have been clearly expressed to Dr YY.

15. Moving to other additional considerations, it appears at the current time neither child has as a good relationship with his or her father. Each has expressed sadness at the prospect of spending time with him at all and have expressed fear of him. That flows from alleged abuse that each child reports in the first half of 2013 by the father towards them. There seems no doubt that each child has a close and loving relationship with his or her mother.

16. There is no indication on the material, apart from assertions made in the father’s lawyer’s letter, that the mother has been other than supporting of the children’s relationship with their father within the confines appropriate given the difficulties that exist in respect of the father’s behaviour towards the children. Their attempts at mediation and to resolve the matter without bringing it back to the court are corroborative of that willingness and ability by the mother to attempt to facilitate and encourage a relationship between the children and the father.

17. The current situation has been in existence for about seven months. To attempt to change what has been in place for that period of time would not in my view be in the children’s best interests and I would infer that the children would become anxious if any order which was permissive of any continuation of face to face time was made.

18. On the face of the assertions made by the children, it seems the father lacks the capacity to provide for the children’s emotional needs and if those allegations are accurate, they point to serious emotional and physical abuse by the father in the first half of last year. As I have already said, the children’s conversations or consultations as evidenced in the notes of Dr YY are corroborative of that serious emotional and physical abuse. In the context of this undefended hearing I accept the children said what is alleged, there is no reason to believe they were not being truthful. This is evidence of serious family violence by the father towards each of the children.

19. I am mindful also that as I understand it, the litigation between the mother and the father about the children commenced in about March 2004 and that looking at the file, there has been numerous interim orders made with a final fully contested hearing with senior counsel on both sides which resulted in a judgment and orders being made on 12 June 2009. There was an appeal. These orders bring to an end the litigation and it seems at the current time the father has formed the view that it is in the children’s best interests for proceedings not to continue.

20. For all those reasons I accept that it is in the children’s best interests to make the orders as sought by the mother. I make orders in accordance with paragraphs 1, 2 and 3 of the mother’s initiating application filed 4 October 2013.

I certify that the preceding twenty (20) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 3 February 2014

Associate:   

Date:  19.2.2014