Bouras and Bouras and Anor (No. 2)

[2007] FamCA 736

FAMILY COURT OF AUSTRALIA

BOURAS & BOURAS & ANOR (NO. 2) [2007] FamCA 736

FAMILY LAW - CHILDREN - With whom a child lives -  Proceedings where Applicant is the adult sister of the child - Where matter resolved after three days of evidence and following substantial negotiations - Approval given to proposed consent orders pursuant to which the child was to live with the Applicant

Family Law Act 1975

Applicant: MS E BOURAS

First Respondent: MRS C BOURAS

Second Respondent: MR BOURAS

Independent Children’s Lawyer: Maria Barbayannis

File Number: MLF 68447 of 1980

Date Delivered: 29 June 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing Date: 29 June 2007

Representation

Counsel for the applicant: Mr J Williams

Solicitor for the Applicant: Mason Tier Turnbull

Counsel for the First Respondent: Mr D Mort

Solicitor for the First Respondent: Berger Kordos

The Second Respondent: In Person

Address for the Second Respondent: N/A

Independent Children’s Lawyer Counsel: Mr G Glover

Independent Children’s Lawyer Solicitor: Maria Barbayannis & Assoc

Orders

In the matter of Bouras MLF 68447 of 1980:

1. I make orders by consent in accordance with the Minutes of Proposed Consent Orders, which I have initialled and amended at times, as appears by red ink.  The orders will be extracted upon the provision of a clean copy, which is to be done by the solicitor for the applicant, who will provide it to my associate by email within seven days.

2. All exhibits be returned to the solicitor for the party tendering the same, and that all documents produced on subpoena be returned to the person or institution providing the same.

3. I direct that my Reasons for Judgment be transcribed with a copy to be retained on the Court file and copies to be provided to each of the parties or their solicitors.

4. For case management purposes, it should be noted that these are final orders relating to children's issues.  All applications are otherwise dismissed and the matter is to be removed from the list of cases awaiting determination.

MINUTES OF CONSENT ORDERS

BY CONSENT IT IS ORDERED

1. That all previous orders save for the orders made 28 June 2007 be and are hereby discharged.

2. That the child M born in May 1998 (“[M]”) live with her sister Ms E Bouras (“[E]”).

3. That the Husband, Wife and E have shared parental responsibility for M.

4. That M spend time and communicate with:

   (a)       the Wife in a four week cycle during school term:

   (i)on the first and second weekend from the conclusion of Greek school on Friday until 6:00pm Sunday, commencing 20 July 2007;

   (ii)on the third weekend, from 10:00am until 6:00pm Sunday, commencing 5 August 2007;

   (iii)the cycle pursuant to 4(a)(i) and (ii) continue on the commencement of each school term as though the school holidays had not intervened

   (b)from 10:00am 6 July 2007 until 5:00pm 13 July 2007:

   (c)for the first half of each of the school term holidays, commencing September 2007, from 5:00pm on the last day of school term until 5:00pm on the middle Saturday;

   (d)from 6:00pm on the day preceding Mother’s Day until 6:00pm on Mother's Day;

   (e)from 3:00pm Christmas Day until 6:00pm Boxing Day each year;

   (f)for half of the long summer holidays each year by agreement and failing agreement the second half;

   (g)on M’s birthday, the Wife’s birthday and M’s Name Day and the Wife's Name Day from the conclusion of school until 6:30pm if a school day and from 10:00am until 2:00pm if a non-school day;

   (h)by telephone with E facilitating M telephoning the Wife at reasonable time and the Wife be permitted to telephone M at reasonable times;  and

   (i)the Husband:

   (i)       by agreement with E.

5. That M’s time with the Wife commencing on Friday afternoon be conditional upon her taking the child to her Saturday sporting commitments, and in the event the Wife does not comply with said condition, time spent with M commence one hour following the conclusion of the sporting commitment on the Saturday.

6. That save for changeovers which occur at the child's Greek school, all changeovers occur at McDonalds at S.

7. That despite the provisions of these orders M spend time with:

   (a)       E:

   (i)from 6:00pm Greek Easter Friday until 6:00pm Greek Easter Saturday in odd-numbered years;

   (ii)from 6:00pm Greek Easter Saturday until 6:00pm Greek Easter Sunday in even-numbered years;

   (b)       the Wife:

   (i)from 6:00pm Greek Good Friday until 6:00pm Greek Easter Saturday in even-numbered years;

   (ii)from 6:00pm Greek Easter Saturday until 6:00pm Greek Easter Sunday in odd numbered years.

8. That the Wife facilitate M telephoning E at 10:00am on 9 July and 11 July and such calls be made without interference to allow M privacy.

9. That E be and is hereby permitted to enrol M at L College.

10. That E authorise any school which M attends to provide to the Husband and Wife copies of school reports, details of parent/teacher interviews, newsletters, school photograph order forms and any other information relevant to M's education, at the Husband's and Wife's expense, if any.

11. That E, the Husband and Wife be and are hereby permitted to attend all school functions, sporting competitions and events, school interviews and extra-curricular activities to which parents are normally invited.

12. That the Independent Children's Lawyer as soon as practicable lodge M’s Passport with the Melbourne Registry of this Court and the Passport shall remain with the Court until further order or agreement in writing signed by all parties.

13. That the Husband and E or their respective servants or agents be and are hereby restrained from being at or within 200 metres of the Wife's residence save for the purpose of effecting changeover, if required, by agreement or Court order with a denial of the necessity thereof.

14. That the Wife be or her servants or agents be and is hereby restrained from being at or within 200 metres of E or the Husband's residence save for the purposes of effecting changeover, if required, by agreement or Court order.

15. That each of the Husband, the Wife and E and their respective servants and agents be and are hereby restrained from denigrating or otherwise criticising another party or member of their household in the presence or hearing of M or knowingly causing another person to do so.

16. That all parties promptly keep each other fully informed of all significant medical appointments, treatments and conditions concerning M.

17. That the Applications of the Husband, the Wife and E be otherwise dismissed.

18. That the appointment of the Independent Children's Lawyer be discharged.

19. That E facilitate such counselling to M as may be required.

20. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

1. That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

NOTATION

A        The Wife denies the necessity for order 14 herein.

B        The Husband and E deny the necessity for order 13 herein.

CThe Applicant agrees to provide forthwith her landline telephone number in order to facilitate communications between the Wife and the child.

DThe Wife agrees to this proposed Minute of Orders based on recommendations of the Independent Children's Lawyer, however she has reservations as to their impact on M's well being and concerns as to her emotional health.

EThe Applicant has agreed to be solely responsible for school fees for the child and educational expenses.

FThe Wife shall wait inside McDonald's Restaurant at relevant changeover times and E or her nominee agrees to send the child into meet her mother without such person approaching the Wife.

Note:These orders have been duly interpreted to the Wife and she has acknowledged her understanding of same.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 68447  of 1980

MS E BOURAS

Applicant

and

MRS C BOURAS

First Respondent

and

Mr BOURAS and ORS

Second Respondents

and

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The applicant in these proceedings is Ms E Bouras.  I will refer to her as “the applicant”.  She seeks an order that her younger sister, M, born in May 1993 live with her.  I will refer to the child as “[M]”.  Respondents to the application are M's mother, Mrs C Bouras, whom I will refer to as “the mother”, and
   Mr Bouras, whom I will refer to as “the father”.

2. The mother and the father initially both opposed the application.  The mother sought that M should live with her, and the father sought an order that M live with him.  If, however, the father was unsuccessful in his application, he then supported orders being made in favour of the applicant. 

Background

1. The father was born in Greece in January 1952 and he is currently 55 years of age.  He is in receipt of a disability pension owing to some medical problems, details of which are set out in his trial affidavit.  It was his evidence that these problems did not and would not stop him from caring for M.

2. The mother was born on in January 1954 and she is currently 53 years of age.  She is employed by the local City Council as a carer on a part-time basis, and she has been employed there for a number of years.  Her work involves her in visiting the homes of elderly folk.

3. The father and the mother married on 4 April 1978.  They separated for about three years, commencing in about 1979, but reconciled, and final separation took place in March 2005.  The father left the family home at that time.

4. There were three children born of the marriage.  The eldest child is the applicant.  She is 28 years old, having been born in March 1979.  She is married and lives with her husband, Mr S in W.  Mr S works as a tradesman on a full-time basis.  The applicant is employed also on a full-time basis as a skills assessor with a trades body.  She has been employed in that capacity for about a year and a half, and prior to that, was a teacher, educating apprentices and secondary school students.  Mr S is 34 and he and the applicant do not have any children.

5. L is the second child.  She is 23 years old, having been born in January 1984 and she currently lives in a domestic relationship with her partner, Mr D at R.  She is employed as a manager with a supermarket. 

6. As seen, M is the youngest child, and she has not long turned 14.  M, at the time of the hearing, was in Year 8 at F College at the R Campus.  She also attends the Greek Orthodox Community School at T each Friday night.

The Hearing

1. At the hearing, the father appeared as a self-represented litigant.  In Re F:  Litigants in Person Guidelines (2001) FLC ¶ 93-072, the Full Court considered and revised earlier guidelines which had been given for the assistance of judges at first instance in cases involving litigants in person. I had regard to those guidelines throughout these proceedings.

2. Mr Williams of counsel appeared on behalf of the applicant.  Mr Mort of counsel appeared on behalf of the mother, and Mr Glover of counsel appeared on behalf of the Independent Children’s Lawyer.  All members of counsel are to be commended for the manner in which they assisted the father, whilst having due regard to their professional obligation as to their respective clients.

3. I was provided with an Outline of Case Document in the Summary of Argument by counsel for each of the mother and the applicant, and the affidavits which were relied upon were set out in those documents and also confirmed during the course of the proceedings.  I will only at this stage refer to the two affidavits of Ms B, which were relied upon by the Independent Children’s Lawyer.  Those affidavits were filed on 18 May 2006 and 28 March 2007.

4. Ms B is a psychologist who was commissioned to prepare Family Reports.  Her reports were annexed to Ms B’s affidavits, and in her reports, she set out her professional qualifications and experience, as well as the dates of the consultations she had and, where relevant, the documents with which she had been provided.

Relevant Legal Principles

1. The applications before the Court are for parenting orders.  Such applications may be made, not only by one or other of a child’s parents.  An applicant can also be:

   “Any other person concerned with the care, welfare or development of the child.”

   (See section 65C(c).)

   The applicant in these proceedings is competent to bring her application, and indeed, no-one contended to the contrary.

2. The fundamental principle governing the making of parenting orders is set out at s 60CA of the Family Law Act 1975 (Cth) (“the Act”), which provides that:

   “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

3. This means that decisions about children are not about the rights and wrongs of the parties' conduct towards each other.  The Court is concerned with the practical question of identifying what is the best for the child or children, and it may then make orders accordingly.  Section 60B sets out the Objects of Part VII and the underlying principles in the following terms:

   “Section 60B(1) of the Act sets out the Objects of Part VII of the Act, namely to ensure the best interests of children are met by:

   (a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

   The principles underlying those Objects are set out in s 60B(2).  Those principles apply except when it is or would be contrary to a child’s best interests:

   (a)      children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and 

   (b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)      parents should agree about the future parenting of their children;  and

   (e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

   Section 60B(3) [Right of Aboriginal child or Torres Strait Islander child to enjoy their culture]  is in the following terms:

   “For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views;  and

   (ii)      to develop a positive appreciation of that culture.”

4. The definition of parent in s 4(1) of the Act includes an adoptive parent of a child, where this is relevant. However, apart from that, there is no expansion of the term “parent”. Giving the word its ordinary meaning, it could be seen that a number of the subsections of s 60B do not apply unless the proceedings are restricted to proceedings between the parents and the child. In particular, I note that the first of the objects does not call for consideration of a child having a meaningful relationship with persons other than that child’s parents. That does not mean, however, that the Court cannot make a parenting order in the applicant's favour if it is determined to be in M’s best interests.

5. It is also the case that the amendments to the Act have not established a presumption in favour of a natural parent, nor do they generate a preferential position in favour of a parent from which the Court commences the decision‑making process (see Dennett & Norman (2007) FCA 57).

6. In determining where a child’s best interests lie, the Court must consider the primary and additional considerations set out in s 60CC.  The primary considerations are set out in s 60CC(2):

   “Primary considerations

   60CC(2)  [Primary considerations]

   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.

   Additional considerations.”

7. The primary considerations are of course consistent with the Objects, which are set out in s 60(1).

8. The additional considerations are set out in s 60CC(3):

   “60CC(3)  [Additional considerations]

   Additional considerations are:

   (a)      any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)      the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii)      other persons (including any grandparent or other relative of the child);

   (c)      the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)      the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii)      any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)      the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)        each of the child's parents; and

   (ii)      any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)      the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)       the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)      the likely impact any proposed parenting order under this Part will have on that right;

   (i)       the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)       any family violence involving the child or a member of the child's family;

   (k)      any family violence order that applies to the child or a member of the child's family, if:

   (i)       the order is a final order; or

   (ii)      the making of the order was contested by a person;

   (l)       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 child;

   (m)     any other fact or circumstance that the court thinks is relevant.”

1. Section 60CC(4) requires the Court to consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent, and, in particular, the Court’s attention is drawn to a number of particular responsibilities.  Again, the use of the word “parent” or “parents” has the effect of some of the considerations being excluded in the proceedings as between the applicant and her own parents.

2. I note that the additional considerations do not provide a closed list of matters or facts which the Court can take into account, given the terms of s 60CC(3)(m).  In my view, these matters go to the heart of parenting, whether the role of a parent is being carried about by a biological parent or by some other person.

3. Accordingly, the matters have been considered in the proceedings as between the applicant and her parents, as well as in the proceedings between the parents themselves.  I qualify that by saying in the present case, given that I am now asked to make orders by consent of all the parties, I am not required to have regard to all, or indeed, any of the matters set out in s 60CC(2) and/or (3).  Nonetheless, it is appropriate that I do so.

4. Both parents of a child have parental responsibility for that child, pursuant to s 61C of the Act, which is defined by s 61B to mean:

   “All the duties, powers, responsibility and authority which, by law, parents have in relation to children.”

5. That parental responsibility, however, is subject to any court order which might be made altering this, and is also subject to any presumption arising from s 61DA of the Act. The presumption does not relate to the time a child spends with each of his or her parents. It relates to the allocation of parental responsibility, and it does not apply in circumstances where a parent has engaged in abuse of a child or family violence. Furthermore, it can be rebutted if the Court is satisfied that equal shared parental responsibility is not in the child’s best interests. If the Court is satisfied that the presumption does apply, then the Court must consider whether the child spending equal or substantial and significant time with each parent would be in the child's best interests.

6. The provisions of s 61DA(1) limits the presumption to the parents of a child. However, pursuant to s 64B(2), the Court may make a parenting order dealing with, amongst other things, the allocation of parental responsibility for a child, and the subsection makes it quite clear that orders could be made in favour of persons other than parents. Again, because of the overriding requirement to make an order which is in a child’s best interests, consideration needs to be given to what form of parental responsibility and what living arrangements, including the child spending equal or substantial periods of time with each of the parents and the applicant, produces a result consistent with the child’s best interests.

Discussion: 

1. The case commenced on Monday, 25 June.  By 27 June, the evidence of the applicant and her witnesses had concluded and the mother’s case had commenced.  Cross‑examination had not been completed.  At the end of the day, I confirmed that counsel for the applicant and the Independent Children’s Lawyer, as well as the father himself, had no objection to Mr Mort seeking instructions from the mother with a view to possible settlement negotiations.  These commenced on Thursday, 28 June.  The discussions eventually involved by consent, and with the Court’s approval, consultation with Ms B, the psychologist, utilising a conference phone.

2. During the course of the morning, I was asked to make an order by consent in circumstances which required the principal of M’s school to bring her to Ms B's rooms and to await further instructions.  In fact, the principal, earlier that day, had M attend upon her.  M was, I am told, extremely distressed, and the arrangements which were undertaken were done so by consent, as I have said, but also in a manner so that the principal of the school was, as it were, protected.

3. I was also subsequently told that the parents and all the parties, in fact, had agreed that M’s place of residence was to change to the residence of the applicant.  At issue, so far as the mother was concerned was when this change should be implemented.  It was her case that it should not take place immediately.  That was not the recommendation of Ms B, and it was also opposed by the Independent Children’s Lawyer, the father and the applicant, who all submitted that M’s change of residence should take place immediately.

4. Having heard the submissions, I agreed, and made orders accordingly, for reasons which I gave at the time.  Upon reflection, I do not believe I need to expand upon the reasons that I gave.  I had, by that stage, determined for myself, as I will shortly explain, that the proposed change of residence which the parties mutually sought, was in M’s best interests.  In doing this, I was acutely aware that the father’s case had not even started, that the mother’s case had not been completed, that Ms B’s evidence had not been tested by cross-examination, and self-evidently, I had not heard final submissions.

5. In Sanders (1976) FLC ¶ 90-078 the then Chief Justice Evatt and Watson J cautioned in the following terms:

   “Restraint is called for in expressing views about the parties, because of the need to have regard to the preservation of the ongoing relationship between the parties and between parents and children.”

6. Sadly, and as recorded by Ms B, the history of this case reveals an extremely dysfunctional and distorted family, functioning with no evidence of resolution, and it appears that there has been an irretrievable breakdown of the family relationships.  What is left, however, should be preserved and it can be hoped, if not expected - it can certainly still be hoped that the ruptures can heal.

7. I will accordingly confine myself to certain observations.

8. Firstly, I have considered and applied the relevant statutory considerations, and have been conscious of the Objects of Pt VII and the principles underlying them.

9. Secondly, I have no doubt that unless M's living arrangements were changed, she would not have had the opportunity of a relationship with the father or her sisters.  Living with her sister, the applicant, will however provide this, whilst not preventing the continuation of a strong and beneficial relationship with her mother. 

10. Thirdly, whilst accepting that the mother can provide and has provided well for M on a physical basis over the years, her ability to cater for her emotional needs is questionable at best.  One has only to make reference to Ms B’s report, and in particular, the second report, to understand this.  By comparison, the applicant and other members of M’s family will, I am confident, care for all of M’s needs, be they physical, emotional or educational.  Her life will be richer and more fulfilling.  That is not to say that the applicant and others are unrealistic in their understanding of the difficulties confronting them; indeed, quite the reverse.

11. My reference to Ms B's reports and my acceptance of some of the matters that she raised in them, particularly relating to M’s current mental health status and her life in her mother’s household, as I said, has not been tested.  Nonetheless, I have been reinforced as to the correctness of those views by my own observations of the mother in the course of these proceedings, both in the body of the Court and when she gave evidence and was cross-examined.  The same observation applies to my views of the applicant and other of her witnesses.

12. Fourthly, and most importantly, I am satisfied that the orders do provide the best possible outcome for M and are in her best interests.

13. It would be remiss of me not to acknowledge the quality of the work done by all members of counsel, not that I would have expected anything less of them. I would single out for special mention the Independent Children’s Lawyer. The role of such a person is defined in s 68LA of the Act, and Ms Pandeli has performed that role faithfully and admirably, and probably even beyond the call of duty.

14. Finally, M has been most fortunate to have had a School Principal of the calibre of Ms A.  Again, her efforts on M’s behalf have been outstanding, and I will direct my Associate to communicate to her and inform her of the Court’s gratitude.  Finally, I note that I was called upon to determine some comparatively minor but nonetheless important aspects of this case, relating to precise arrangements for M to spend time with her mother.  I do not need to make further reference to them.  I ruled on them before the luncheon adjournment and I have subsequently been told that all the orders which I have now asked to make can be made by consent.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:     

Date:              23 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BOURAS & BOURAS