Christos and Christos

[2013] FamCA 551

FAMILY COURT OF AUSTRALIA

CHRISTOS & CHRISTOS [2013] FamCA 551

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – BEST INTERESTS – EQUAL TIME – where the parties lived separate and apart under the one roof – where the mother now has sole occupation of the former matrimonial home – where the father seeks time on a week about arrangement – where the mother seeks the child live with her and spend substantial time with father – where it was held that equal time is in the child’s best interest.

APPLICANT: Mr Christos

RESPONDENT: Ms Christos

INDEPENDENT CHILDREN’S LAWYER: Ms Power

FILE NUMBER: SYC 4025 of 2012

DATE DELIVERED: 11 July 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 11 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Dura

SOLICITOR FOR THE APPLICANT: LAC Lawyers

COUNSEL FOR THE RESPONDENT: Ms A. Cotter-Moroz

SOLICITOR FOR THE RESPONDENT: Paltos Briggs Family Lawyers

INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW Sydney Central Family Law

Orders

IT IS ORDERED BY CONSENT THAT

1. Dr L be appointed single expert pursuant to pursuant to Division 15.5.2 of the Family Law Rules 2004 (hereafter referred to as “the Expert”) to enquire into and report upon matters relating to the welfare of the child Christos (“the child”) and that in preparing this report to the Court, to consider the following matters:

   1.1Any views expressed by the child and any factors, such as the child’s maturity or level of understanding, relevant to the child’s views;

   1.2Whether the child is at risk of being exposed to any physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence;

   1.3Any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

   1.4The relationship of the child with each of the child’s parents and any other relevant person;

   1.5The 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;

   1.6The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other person with whom the child has been living;

   1.7The capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs;

   1.8The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);

   1.9Any family violence involving the child or a parent;

   1.10The mental state of both parents;

   1.11Any other matter the Expert considers relevant. 

2. For the purpose of Order 1 hereof, the parties shall within 14 days of the date of these Orders send a joint letter of instructions to the Expert pursuant to Division 15.5.4 of the Rules.

3. The Husband shall pay in the first instance the costs of preparation of the expert’s report in Orders 1 hereof and it is noted that the issue of the Wife’s contribution to costs of the expert’s report shall be a matter for trial.

4. Grant liberty for the parties to apply generally.

IT IS FURTHER ORDERED BY CONSENT THAT

1. Mr D of D Valuers be appointed single expert pursuant to Division 15.5.2 of the Family Law Rules 2004 (“Rules”) to prepare a valuation report indicating the current market value and retrospective value as at the date of the parties marriage of the husband’s interest in the following properties:

   5.1Property X;

   5.2Property C; and

   5.3Property M ;

   and the current market value of the Husband’s interest in the following properties:

   5.4Property R; and

   5.5Property B.

2. For the purpose of Order 1 hereof, the parties shall within 14 days of the date of these Orders send a joint letter of instructions to the single expert pursuant to Division 15.5.4 of the Rules.

3. The parties shall for the purpose of Order 1 hereof, do all acts and things and give all necessary directions and authorities to enable the single expert appointed pursuant to that Order to gain access to the properties identified therein;

4. Grant liberty to the  parties to apply following completion of the valuations referred to in Order 3 hereof as to the necessity for the appointment of the single expert  to prepare a valuation indicating the value of the husband’s interest in each of the following :

   8.1Christos Partnership (ABN: …);

   8.2Christos and Anor Partnership (ABN: …); and

   8.3Christos and Ms Y Partnership (ABN: …).

5. That Mr D of Q Pty Ltd be appointed a single expert pursuant to Division 15.5.2 of the Rules for the purpose of preparing a valuation report indicating the market value of Wife’s jewellery.

6. For the purpose of Order 5 hereof, the parties shall within 14 days of the date of these Orders send a joint letter of instructions to the single expert pursuant to Division 15.5.4 of the Rules.

7. The Husband shall pay in the first instance the costs of preparation of the valuation reports in Orders 1, 4 & 5 hereof and it is noted that the issue of the Wife’s contribution to costs of the valuations reports shall be a matter for trial.

8. Grant liberty for the parties to apply generally.

IT IS ORDERED UNTIL FURTHER ORDER

1. That within seven (7) days from the date of these Orders the Husband vacate the former matrimonial home known as and situated at Suburb M and thereafter the Wife have sole and exclusive occupation of the said property.

2. That Orders 3(i) and 3(ii) of the Orders made on 26 October 2012 be discharged.

3. That in addition to the time the child lives with the Husband pursuant to Orders 3(iii) to 3(v) of the Orders made on 26 October 2012, the child also live with the Husband at the following times:-

   15.1From before school on Monday to the commencement of school Thursday commencing on Monday, 15 July 2013 and each alternate week thereafter; and

   15.2From 9am Sunday to the commencement of school Thursday commencing 21 July 2013 and each alternate week thereafter.

4. That for the purposes of the Order 15.1 above, the Husband shall collect the child from the former matrimonial home between 7.45am and 8.15am on Monday and for the purpose of Order 15.2 above shall collect the child from the former matrimonial home at the commencement of such period.

IT IS FURTHER ORDERED

1. That leave be given to the Independent Children’s Lawyer to provide to Dr L a copy of the transcript of the evidence of Ms N on 3 July 2013.

2. That the costs of all parties and the Independent Children’s Lawyer be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Christos & Christos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4025 of 2012

Mr Christos

Applicant

And

Ms Christos

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application in relation to a child, A (“the child”), born in 2005. Her parents are Mr Christos (“the father”); and Ms Christos (“the mother”). They separated on 6 June 2012 and have continued from that time to live separately and apart with the child in the former matrimonial home at Suburb M. An application has been made by the father for an order that would see the mother having sole occupation of the former matrimonial home, and the child living, on an approximate week about basis, with each of her parents.

2. It is the father’s case that he would move to live in the home of his mother who lives reasonably close to the former matrimonial home, and that the child would spend her time in his care in his mother’s home. 

3. The mother relies upon an affidavit sworn by her on 6 November 2012. What that affidavit demonstrates beyond doubt is that the child’s situation in the home in which her parents both live is intolerable. Relevantly, the mother reports the school principal as saying to both the mother and the father these words: “If you are both making me feel nervous, can you imagine what the child is going through. One of you has to leave the house.”

4. The mother’s affidavit is redolent with the conflict between the parents and its affect on the child. 

5. The parties and the child were seen by a family consultant, Ms Ms N, on 4 December 2012 and 13 December 2012 for the purpose of preparing a memorandum pursuant to the Child Responsive Program. Ms N’s memorandum sets out the views of the child in the following way:

   [A] (aged 7yrs 9mths) spoke at length and in detail about her family life. She expressed strong reservations about her mother being told about some of what she had related to the Family Consultant. She said that she was frightened of her mother. [The child] views herself as “annoying” her mother and described her mother reacting in physical and verbal ways to this. Some of what she described confirmed the mother’s own account of her past behaviour with the child (hitting and name-calling).  [The child] indicated that it was “OK” for the Family Consultant to tell her mother that she was scared of her and that her mother hurt her feelings by, for example, throwing away her toys. 

   [The child] also described things she enjoys doing with her mother and feeling that her mother, when not angry with her, is “friendly, nice [and] kind” to her.  The ambivalence that this would seem to reflect tends to suggest that she has not been alienated from her mother. The negative side of her ambivalence was focussed on the frightening aspects of her mother’s anger, and her mother’s reported expressions of negativity about the child’s father and paternal family, whom [the child] believes her mother “hates”. She said that her mother says that her father is “an idiot”, “psycho”, “full of crap”, and that she thinks “he’s dirty”. (She said that she hugs her father when her mother is not looking and he “wasn’t even dirty” [he] always had a bath”.) 

   [The child] does not appear to feel the same level of ambivalence about her father and this would seem to be related to her experiencing him in a non-frightening way. She also seems to view him as being generally less negative about other people that she loves (including her mother). She commented that her father “is really important to me”, that she misses him, and that she “love[s] him so much”. 

   The other important area that [the child] discussed was that of her parents’ relationship with one another, which she views as being highly conflicted. She said that, rather than being sad that her parents separated, she is happy that they did so.

6. There can be no dispute that it is appropriate that the child’s parents should live separately and apart, and that the arrangement whereby the child lives with both of her parents under the one roof should cease. I agree with and accept the submission of the Independent Children's Lawyer that the child’s current environment is an artificial one, and that the environment to which she needs to become accustomed is an environment where her parents live separately, which will be her reality for the future. 

7. The competing proposals of the parties in relation to the time the child will spend with each of them are these.

8. The father proposes an approximately week about arrangement. 

9. The mother proposes an arrangement where the child would see her father on each of Monday, Tuesday and Wednesday morning before school, and on Monday, Tuesday and Wednesday evening after school. She proposes that the child should spend overnight each weekend with her father from 3 pm Saturday until 7.30 pm Sunday. 

10. The mother says that this arrangement would not in any way decrease the time that the child spends with her father. I do not accept that submission. At the present time, the child knows that her father is sleeping in the home in which she sleeps, every single night during the week. The proposal that the mother puts forward substantially decreases the time when the child’s father is in the same home as the child. 

11. The Family Consultant, Ms N, was cross-examined on 3 July 2013. Ms N’s evidence was that it would be preferable and in the child’s best interests for the child’s parents to live separately, and that the child’s time with her father should not be reduced. Ms N gave evidence that the child is afraid of her mother based upon the mother’s actions and things that the mother has said about her father’s family.

12. The child stressed to Ms N how important her father is, and told Ms N that she wished her father could take her to live with him. Ms N said that she did not put that aspect of the child’s discussion with her in the report because she was concerned about the way in which the child would cope over the period of time until the trial if the mother were aware of those statements. 

13. Ms N stressed that the reason she had not put that evidence in the report was that she felt it was necessary for the child’s protection considering that there was no hearing date in sight.

14. Ms N expressed her concern about how the child would be affected if her time with her father were reduced, and said that the child experiences her father in a more benign way than she experiences her mother. 

15. Ms N gave evidence that the only change of time that she would consider would be the possibility that the child would spend more time with her father rather than less. She also gave evidence that if the father was living with the paternal grandmother and working, her views would be unchanged. 

16. Both parents agree, and I concur, that it is in the child’s best interests if her parents cease living separately under the one roof.

17. Having regard to the evidence of Ms N, I could not consider reducing the time the child spends with her father. I have not been asked by either the father or the Independent Children's Lawyer to increase the time, and therefore in my view it is appropriate that the child should spend approximately equal time with both of her parents and the orders will be the orders which are sought in the minute of orders proposed by the father as set out in Exhibit 1.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 July 2013.

Associate:

Date:  11 July 2013