Dimelis & Dimelis

Case [2023] FedCFamC1F 187

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dimelis & Dimelis [2023] FedCFamC1F 187

File number(s): ADC 3438 of 2022
Judgment of: BERMAN J
Date of judgment: 23 March 2023
Catchwords: FAMILY LAW – CHILDREN – Interim – where the mother found the father’s journal entry which deposed to harming and killing himself, the mother and the children – where the father acknowledges the journal entry is concerning – where the father denies any intention to carry out the activities described in the journal – where the father’s psychologist opines the father suffers from a mental health condition and anxiety – where the psychologist did not consider the father was capable of self-harming or harming others – where the father also underwent psychiatric assessment – where the psychiatrist opines that the journal entry was comprised of the father’s mental health condition-related fears – where the psychiatrist did  not consider that the father would harm the children – where the parties attended a Family Assessment Report – where the report writer considers that the father’s time with the children should not be supervised – Consideration of Marvel v Marvel (2010) 240 FLR 367 – Orders.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 67U
Cases cited:

Marvel v Marvel (2010) 240 FLR 367

Starr & Duggan [2009] FamCAFC 115

Division: Division 1 First Instance
Number of paragraphs: 97
Date of hearing: 7 March 2023
Place: Adelaide
Counsel for the Applicant: Ms Lewis
Solicitor for the Applicant: Resolve Divorce Lawyers
Counsel for the Respondent: Mr Ahmad
Solicitor for the Respondent: Cleofe Parsons Legal

ORDERS

ADC 3438 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DIMELIS

Applicant
AND:

MS DIMELIS

Respondent

order made by:

BERMAN J

DATE OF ORDER:

23 March 2023

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.Order 12 of Orders made 23 February 2023 be discharged.

2.The mother and father have equal shared parental responsibility for X born 2018 (“X”) and Y born 2019 (“Y”) (collectively “the children”). 

3.The children live with the mother.

4.The children spend time with the father, as and from Wednesday 29 March 2023, as follows:

(a)In week 1:

(i)from 8.15 am to 6.30 pm on Wednesday.

(b)In week 2:

(i)from 8.15 am to 6.30 pm on Wednesday; and

(ii)from 8.15 am on Friday to 6.30 pm on Saturday.

5.When in the father’s care, the children will reside at the home of the paternal grandparents.

6.Whilst at the home of the paternal grandparents, the father’s time with the children will be the subject of substantial supervision such that one or both of the paternal grandparents must be at the home at all times, but not necessarily in the physical presence of the father, and the children PROVIDED THAT on any occasion when the children are in the father’s care away from the home of the paternal grandparents, the father’s time is to be the subject of strict supervision by one or both of the…

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Dimelis & Dimelis [2023] FedCFamC1F 187
Case
[2023] FedCFamC1F 187
Decision Date

CaseChat Overview and Summary

In the matter of Dimelis & Dimelis, the court was tasked with making decisions about the interim parenting arrangements for the parties' children. The case arose from the separation of the parties in mid-2022, with the mother remaining in the former matrimonial home with the children while the father took up residence with his parents. The mother had applied for an interim Intervention Order, which was subsequently made, naming her and the children as protected persons. The mother alleged that she had suffered verbal, psychological, and financial control by the father during the marriage, as well as non-consensual sexual intercourse. The father, on the other hand, denied any intention to carry out any of the concerning activities described in a journal entry, which he claimed was a therapeutic exercise encouraged by his therapist. The court was required to determine whether the father should have unsupervised time with the children, given the mother's allegations of past abuse and her concerns for the children's safety.

The court considered the mother's allegations of family violence and the father's journal entry, which included concerning thoughts about harming the children. The court also considered the objects and underlying principles of the Family Law Act, as well as the primary and additional considerations under section 60CC of the Act. The court had to weigh the benefit to the children of having a meaningful relationship with both parents against the need to protect them from physical or psychological harm. The court had to consider the evidence adduced by each party and approach it with caution, given the interim nature of the hearing. The court was also required to consider the evidence of each party in respect of the particular considerations pursuant to sections 60CC(2) and 60CC(3) of the Act.

After considering the evidence and arguments presented by both parties, the court decided that the father should not have unsupervised time with the children. The court found that the mother's allegations of family violence and the concerning journal entry raised significant concerns about the children's safety in the father's care. The court was particularly concerned about the father's past thoughts of harming the children and his potential risk to them. The court considered that it was in the best interests of the children to maintain the interim parenting arrangements, which provided for supervised contact with the father. The court also noted that the parties had agreed to seek marriage counselling and that the father had engaged in personal and couples counselling. However, the court considered that these efforts were not sufficient to address the concerns raised by the mother's allegations and the father's journal entry.

The court made orders that the father should not have unsupervised time with the children until further order. The court also made orders for the parties to attend a Financial Conciliation Conference and for the substantive applications to be heard on a specified date. The court noted that the interim parenting arrangements were likely to be in place for a period of about six months. The court's decision was based on its assessment of the evidence and its consideration of the relevant legal principles and factors. The court's primary concern was the safety and wellbeing of the children, and it considered that the interim parenting arrangements provided the best means of protecting them in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

Noting that the property settlement proceedings are listed for a Financial Conciliation Conference on 5 April 2023, I have listed the substantive applications of the parties for final hearing to commence on 18 September 2023. Accordingly, the interim parenting arrangements will likely be in place for a period of about six months.BACKGROUND The parties separated in mid-2022. The mother remained in the former matrimonial home with the children. The father took up residence at the home of the paternal grandparents where he currently resides. On the day of separation, the mother applied for an interim Intervention Order and five days later, an Intervention Order was made naming the mother and the children as protected persons. The mother contends that throughout the marriage she suffered verbal, psychological, and financial control by the father that she considers constitutes family violence. The mother also considers that the father’s conduct included non-consensual sexual intercourse. The parties agreed that they would seek marriage counselling to assist in the difficulties that they were experiencing. The father attended personal counselling with Ms B. The parties also agreed to attend couples counselling with Ms E. It seems that part of advice given by Ms B to the father was that he should keep a journal of his feelings, experiences and concerns. Following an argument in mid-2022, the mother first became aware of a journal entry made by the father containing the following remarks:-Harm:- Suicide by slashing wrists and hanging- Raping [X] or touching inappropriately- Stabbing [Y] in neck- Killing and dismembering family- Smothering [X]- Killing parents in sleep - Cutting tops or envisaging tops of heads not on … - Leading or allowing [Y] to go in front of a car- Concern that I was cannabalistic (sic) or was eating human flesh when eating meat- Going balistic (sic) and stabbing people at [celebration]- Being drilled into with a power drill- Hurting kids with a power drill- Having an affair with my therapist [Ms B]- Worry about kids drowning or doing something to inflict that - Pushing wife into water and stabbing- Fear of sleep walking and hurting family Sleep:- Fear of dying in sleep- Fear of Not sleeping - Fear of having dreams- Fear of becoming a sleep deprived zombie- Fear of fire whilst asleep killing us The mother took a photo of the diary entry and then determined that she would separate from the father. In mid-2022, the mother transferred all available funds in the father’s bank account to her account. Later, the mother called the police and they attended at the former matrimonial home where she then showed them the diary entry. The father left the former matrimonial home. The father acknowledges that the list of thoughts, as set out in the journal entry, is concerning. He denies that there was ever any intention to carry out any of the activities described. He seeks to underpin his explanation by reference to the therapy he had been engaging in with Ms B who encouraged him to set out his thoughts and day to day concerns as a method of managing his mental health, anxieties, and the emotional sequelae arising from the dysfunctional relationship with the mother.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Starr & Duggan [2009] FamCAFC 115, the Full Court gave clear direction as to the co-existent principle that the best interests of the child is the paramount consideration and the legislative framework will, of necessity, involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-38.… it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:-•first make findings concerning the relevant s 60CC factors;•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.PARENTING CONSIDERATIONS I propose to adopt the following approach:-(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;(5)Have regard to additional considerations under s 60CC(3) of the Act; and(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment. The consideration of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence at an interim hearing and as such, the evidence and issues raised by each of the parties is to be approached with caution.MOTHER’S FURTHER ALLEGATIONS The mother sets out her primary reasons for opposing the father having unsupervised time as follows:-(1)That the father could engage in an act which could harm the children;(2)That the father may revert to previous thoughts about hurting the children;(3)That the father is unable to independently look after the children;(4)The associated risks with the mother’s allegations that the father has coercive controlling tendencies and tendencies to manifest this into sexualised harm; and(5)The mother’s anxiety that the children are at risk of harm in the father’s care. In her affidavit filed 27 January 2023, the mother expands upon the history of the relationship with the father. Specifically, she contends that she suffered verbal, psychological, sexual and financial control by the father.