CHRONIS & CHRONIS

[2018] FamCA 635

FAMILY COURT OF AUSTRALIA

CHRONIS & CHRONIS [2018] FamCA 635

FAMILY LAW – CHILDREN – Interim – Where the father seeks overnight time with the child and the mother seeks the father’s time be supervised – Where an Independent Children’s Lawyer has not been appointed and there is no evidence available from a family consultant – Where the father has been hospitalised in the past as he threatened to kill himself – Where no harm will come to the children if the father has supervised time – Where the children could be at risk of harm if the father repeats past behaviour – Orders made for the father’s time to be supervised and for the appointment of an Independent Children’s Lawyer.

FAMILY LAW – PROPERTY – Where the mother has withdrawn funds – Where the father is concerned the funds will be dissipated or not added back at final hearing – Where the father has cut off the mother’s access to joint funds – Where the asset pool is almost $9 million – Where the principle with respect to interim financial orders involves not doing something that can’t be undone at final hearing and not interfering unless necessary – Where no order is made to return the funds.

Rice & Asplund (1978) 6 Fam LR 570

APPLICANT: Mr Chronis

RESPONDENT: Ms Chronis

FILE NUMBER: SYC 3737 of 2018

DATE DELIVERED: 30 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 30 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: Nolan Lawyers

COUNSEL FOR THE RESPONDENT: Mr Longworth

SOLICITOR FOR THE RESPONDENT: Gordon & Barry Lawyers Pty Ltd

Orders

1. Orders are made in terms of the interim orders sought by the wife at paragraphs 1 to 8 inclusive of the interim orders set out in the Response filed 16 July 2018, as set out hereunder:

   1.      That an Independent Children’s Lawyers be appointed for the children, X born … 2006, Y born … 2008 and Z born … 2010 and the Court requests the Director of Legal Aid New South Wales to make the appropriate arrangements.

   2.      That each party should forward forthwith to the said Director a copy of all documents filed on their behalf in the proceedings.

   3.      That the Independent Children’s Lawyer has leave to inspect all documents produced on Subpoena and to make photocopies thereof.

   4.      That the Independent Children’s Lawyer has leave to issue all Subpoenas as they deem to be relevant.

   5.      Leave be granted to the ICL to provide a copy of this Order to the Father’s treating health professionals.

   6.      The Children live with the Mother.

   7.      The Children shall spend time with the Father supervised by B Group for Children or other third party professional supervisor as agreed in writing between the Parties (“the supervisor”) for 5 hours as specified by the supervisor but failing that from 11 am to 4pm on:

   7.1.each alternate Saturday;

   7.2.12 August 2018;

   7.3.2 September 2018; and

   7.4.25 December 2018,

   7.5.with the father to pay the cost of supervision as and when they fall due.

   8.      Pending further Order, the Father be and hereby is restrained from:

   8.1.physically disciplining the Children;

   8.2.physically assaulting the Children; and

   8.3.verbally denigrating the Mother to the Children.

2. The Registry notify Legal Aid NSW as soon as practicable of the making of that order and that the parties provide access to their representative for the children at times, dates and places requested by the representative.

3. The Court Notes that the parties have an appointment for counselling on 21 August 2018 and otherwise no interim orders are made sought by the husband in his Initiating Application filed 14 June 2018 and by the wife in her Response referred to earlier.

4. The Court request that consideration be given to the children being interviewed for the purposes of the counselling appointment.

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

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3737 of 2018

Mr Chronis

Applicant

And

Ms Chronis

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in the context of proceedings for final parenting orders in relation to three children:  X, born in 2006, (12 years of age); Y, born in 2008 (nearly 10 years of age), and Z, born in 2010 (just eight years of age).  The parents are the applicant husband who is 45 years of age and the wife who is 47 years of age.  They started to live together in 2003, were married in 2004 and separated for the last time in October 2017.

2. The proceedings are at a preliminary stage.  Presumably the parties have been to a family relationships centre, but they have not started the journey of counselling in the Court.  It is conceded that the children should be represented and that has yet to occur.

3. Normally the Court would not make any controversial orders in relation to parenting arrangements until those two things were put in place - counselling and an Independent Children’s Lawyer (“ICL”) appointed.  That is because the gold standard outcome in family law is an informed agreement between the parents.  It is not just the usual outcome, it is well accepted as the best outcome.  There are small categories of cases where there needs to be a defended trial for various reasons.  Sometimes there is some legal complexity in the case, sometimes one or both of the parties are under some sort of disability, sometimes the parties just cannot bring themselves to compromise the matter, and in those circumstances, a trial is required.  But that is not the fate of most cases.

4. It is dangerous for the Court to intervene before those things are done.  The Court does not have all of the evidence at this early stage.  The Court does not know all of the things the parents know and so the Court is looking through an opaque glass at the background facts.  The parties know everything about the children.  They know perhaps too much about each other.  If the Court is required to act at an interim stage it will normally react to those problems by taking a conservative approach.

5. In terms of the parenting arrangements, on the mother’s application, she would have the children live with her and spend supervised time with the father through a commercial agency.  She proposes five hours, as specified by the supervisor, and, if not, 11.00 am to 4.00 pm each alternate Saturday.  She also suggests time on some special days such as birthdays and so on.

6. The father proposes that the parties have equal shared parental responsibility, the children live with the mother and that they spend time with the father in a fortnightly cycle:

   (a)week 1 – after school Thursday until the commencement of school the next day; and

   (b)week 2 – after school Thursday to the commencement of school Monday.

   He also seeks half the school holidays (including the long school holidays), special days at Christmas and Father’s Day and so on.

7. It is the father’s case that after separation he had been having overnight time with the children under an arrangement proposed by the mother since February 2018, and if there is to be a change to those arrangements requiring supervision there has to be a very significant reason for doing so.  He would say that such a reason could not be found in the fact that he was briefly hospitalised in late 2017 because the mother’s proposals in February post-dated that event.  He is concerned about proper regard being had to the meaningfulness of his relationship with the children.  He says that there is evidence the children want to spend time with him and, by inference, that they would be greatly offended and upset by a reduction in the duration and circumstances of his time with them.

8. He is concerned about the effect on the children of regressing to supervision in a formal way and what that would cause in the children’s minds, the fact that there is going to be a third-party there, what questions might arise for them and how they would be dealt with.  He says even though the parties have significant resources, there is an issue about the practicability of a supervision order, pointing to the delays that sadly do exist in this Court and, I suppose, fearing for the worst - that this is one of those cases that will go the journey rather than be resolved by agreement and thinking that that might mean two years or more of supervised time.

9. He has an argument about the (lack of) capacity of the mother which I will not be able to do justice to, and I will not even try.  As to the attitudes to the children and responsibilities of parenthood, I think he would say that the mother’s behaviour in seeking to restrict or contract his time does not reflect well on her and her exercise of parental responsibility.  Of course as to this criterion and as to capacity, he is caught with his application that the mother continue to exercise parental responsibility (albeit with him) and that the children live mainly with her. 

10. She does not want the Court to take into account a course that would least likely lead to further proceedings.  Mr Lethbridge SC for the father would like the opportunity to revisit the circumstances put in place by me today, after the ICL is on board and the initial advices are received under the child responsive program from a family consultant.  The legal position is encapsulated in a decision of Rice & Asplund (1978) 6 Fam LR 570 which would have courts not reconsidering the same factual circumstances and requiring that there be a significant change in circumstances before revisiting a decision.

11. This comes in the context of me unsuccessfully trying to cajole the parties into limping along for this little period, putting in place the ICL, and the parties’ having access to a family consultant.  That said I can understand a fear about locking something in place and it being left there by force of delay.

12. For the mother, it is said that her February 2018 proposals need to be seen in the context of a history involving family violence.  She says that, in particular, there was physical violence in 2012.  She says that the father has been responsible for controlling, bullying and other poor behaviour at times in the past.  She says that she was and continues to be concerned by the fact of the father’s hospitalisation in October last year.  The circumstances involved the father being admitted, I think, on 21 October, discharged on the 23rd.  That was said to be on the point of or soon following the parties’ separation.  There is reference in the medical records to the father preparing a suicide letter of some four pages.  The hospital notes included a report of him saying:

    I’m in danger of dying from nothing but embarrassment…Ive started writing a letter which was quite cathartic - I put something in there which I shouldn’t have… I don’t think there was any actual intent to go through with it.  “It was hardly my finest moment (re suicide note)”

13. Referring to his employment the father said:

    I’ve only been there a couple of months they’ve already had a conversation with me about equity.  [I couldn’t work out what that was about]

    In the last couple of months I thought things were on the up.  I felt that all that effort hasn’t be recognised.  I was made redundant from my role. 

14. He said that his suicide letter was not premeditated in any sense.

15. I do not know what that means.

16. There is a psychiatric history in the records.  I understand that both of the father’s parents may have passed away and he talks about the associated understandable grief that related with that.

17. The father was released from hospital on the basis that there was going to be a safety plan put in place.  There is a reference in the hospital records about his intention to make an appointment with a private psychologist and/or whether he had made an appointment with a private psychologist.

18. There is no evidence that he has done that.  There is a letter from somebody described as a life coach and there are notes of sessions involving the husband, but there is nothing to indicate whether any test were administered or what were the qualifications of the author.  In terms of a report from a treating medical practitioner there is nothing in the notes to indicate the periods over which the treatment occurred; how the referral was made; any reference to a diagnosis; and no indication of treatment or prognosis.  It is never a good start for a medical record to be headed “To whom it may concern”.  Suffice it to say that the document provided by the life coach is not a helpful document, even if it transpires that the author has relevant qualifications.

19. There is reference in the hospital material to the father having possible narcissistic traits.  We have a situation where looking back on it, the father seeks to minimise the incident.  He would say that it was a reaction to the circumstances at the point of separation and there was nothing in it.  He would say that he did not act on a suicidal impulse, there was no premeditation and, “I’m better now”.

20. Of course, the mother is entitled to be concerned about those circumstances.  Any exposure the children might have had to such an incident would be harmful to them.  It would ruin their lives if the father did something to himself.  It would probably have long-term, devastating, irremediable damage.

21. The father is the only person who could know whether the October incident was a matter of real concern.  His statements to the hospital are inconsistent.  “I don’t think there was any actual intent to go through with it” is different to “It was just a cry for help and I never intended …” The Court is left with the evidence and, of course, I do not know the truth of it.  In one sense if the event was purely an expression of a narcissistic aspect of the father’s behaviour, that might be a good outcome.  If he was just acting badly, and provided the children are insulated from further expression of that, that would be of lesser concern than him having a commitment to self-harm.

22. That said, it is not unremarkable that the father threatened to kill himself.  There are happily many children in our community who are never exposed to a threat of self-harm by a parent.  The mother is sensible to be concerned about it and she is sensible to be worried by the fact that the father is apparently not concerned about it.  The father may well be right and it might be that there will never again be anything done by him in the nature of the October incident.  And, of course, mental health treatment is always a matter for him.  If he truly believes that he does not need assistance then it is probably of no use him attending on a mental health practitioner.

23. The other thing to say about all of that is that having a suicidal ideation, being a narcissist or having narcissistic traits are not disqualifying factors from being an active parent.  The only thing is that the children should not be exposed to the associated behaviours.  Children of 12, 10 and eight years of age have things to focus on such as what they wear, what they eat, and that their parents love them.  They cannot easily process something as awful as the worst end of those mental health issues.  We need to make sure that they are safe.

24. There is evidence, as is put in the mother’s case, that the father has significantly exposed the children to his anger about the breakdown of the parties’ marriage and ongoing arrangements.  He was even critical of the mother during one of the supervised visits.  “What was he to say?” posed Mr Lethbridge on his behalf.  “Your mother and I love you more than anything in the world.”  That would be a nice thing to say.  He did not have to make any disparaging comments.  He could say anything, but not something disparaging.  One of the privileges of being a child is you are entitled to love both your parents and you do not have to have one of them running down the other.

25. Now, the mother might be wrong about that because the only witness we have is her.  We do not have any independent material, partly because the parties have not been to a family consultant yet so we do not have any indication about what is happening and we do not have the ICL here to say, “Well, actually the children aren’t worried about these things,” or that they are.  We are just flying blind at the moment, but the evidence of one party on oath is not no evidence, and, of course, it cannot be gainsaid by the father.

26. It might be, and it sometimes happens, that children caught in a high conflict situation between their parents start to take up the cause for one of their parents.  Perhaps that is what happened here and a child has reported something to the mother that was not true.  That is a possibility.  It also might be that it was true.  That said, there is a level of consistency about the reports.  There is the tone of the parties’ SMS communication; there is a battle going on at a temperature that is not warranted by the objective facts on the financial side.  There is some history of a high level of conflict.

27. I was told that the physical violence inflicted on the mother by the father in 2012 was over a haircut.  So there are some problems.  It is my job to be nervous about other people’s children.  No harm will come to the children if the father has supervised time.  No harm at all.  Their decades’ long future relationship into the future will not be harmed.  On the other hand they could be harmed if something happened in the territory of the concerns that have been raised as to the past behaviour.  They could be harmed in a way that cannot be repaired.  We are told that exposure to violence or abuse can change the way children’s brains develop and particularly in the case of young children who do not have a way of addressing or rationalising those behaviours.  And then we just open a file for them one day.  How do you manage relationships?  “Well, this is how my parents did it.”  

28. I will make the orders that are sought on behalf of the mother.  If the parties can agree to something else at some point, that is what we would expect them to do.  If parents come to live their lives according to court orders over a long time then something is very wrong.  I will make the orders that are proposed which includes an agreed order about an ICL.  And I am told counselling is booked for the 21 August 2018.

29. On the financial side, the father is concerned that two lots of funds have disappeared.  Four hundred thousand dollars has been paid to the wife’s parents and he contends that it is the parties’ money, and he’s worried that it won’t be recovered or included in the balance sheet at the end of the case.  There is no real risk about this.  If the parties settle the matter, the father will not settle it without taking account of that payment.  If it goes to a judicial determination, the evidence of the payment will be there and the mother will be put to proof about whether there was an amount owing.  If the funds never belonged to the parties, as I understand that the mother will allege, then they would not have been in the balance sheet anyway.  If it they were the parties’ funds, they can be put notionally back into the balance sheet as part of the money allocated to the mother.

1. Nextly, there was a bank account and the mother has appropriated, I think, $222,000.  The father contends that the mother did not need to do that and the money should be put back into a common joint account.  The father is worried and there is something in this argument, that if the money is dissipated by the mother at trial it will put an unfair burden on him to argue that that money should be put back into the balance sheet. 

2. I am not going to order that the money be restored.  There is a number of ways in which the father can make the necessary argument.  Firstly, I suppose, it can be argued that there was a level of financial support in this appropriation.  The father has already cut off the mother’s access to joint funds, so he must be accepting now that some of the $222,000 will be applied to the children and the expenses that would have been addressed from those sources.  He says that there is no child support assessment yet but he is going to apply for one.  As I say he has cut off use of a joint credit card on the basis that the wife will have access to these funds. 

3. I understand that the wife has an income of $100 a week.  If it transpires that, but for the appropriated funds she would have had a need for financial support from the husband, the appropriation might be belatedly seen as a lump sum payment of spousal maintenance.

4. There is a risk, as Mr Lethbridge says, that there will be no appetite from a judge at a final hearing to add back moneys, and I think that is right.  If it transpires that the wife spends money at twice the rate that she says she needs, then it is a relatively easy argument and there might be some interest in it.  If that involves a substantial amount then there may be further attraction to the argument.  The wife does not say this, but say she was suddenly to spend at the rate the husband was spending, there might be a complaint that she has changed her spending habits for the purpose of destroying $222,000 so that that would not be available to the husband. 

5. This is a case where there has been references to something a bit less than $9 million in the matrimonial pool.  It is a case where it is conceded on behalf of the husband that the wife might have a claim of somewhere between 25 per cent and 35 per cent.  That means that the moneys to which the wife has had access are well within her claim.  I appreciate it still requires there to be some appetite for going through the dollars and cents. 

6. There is no principle of putting money back where it was.  No principle of financial status quo.  The only principles in respect of interim financial orders involve not doing something that cannot be undone at a final hearing and not interfering unless you have to.  There is no suggestion here that it is necessary to make any order.

7. As to other issues, there is an application on the parenting side that the father be restrained from physically disciplining the children, physically assaulting the children and verbally denigrating the mother to the children.  He is not allowed to do those things in any event, and I will make that order.  There is an application on the financial side that the father take all steps to transfer to the mother a German motor vehicle.  I have been told that he will not seek to remove the vehicle from the mother and on that basis I make no order for transfer at this time. 

8. Otherwise I make no interim orders sought by the father in his Initiating Application filed 14 June 2018 or by the mother in her Response referred to earlier. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 30 July 2018.

Associate: 

Date:  30 July 2018