DIMITRIOU & DIMITRIOU

[2012] FamCA 1137

FAMILY COURT OF AUSTRALIA

DIMITRIOU & DIMITRIOU [2012] FamCA 1137

FAMILY LAW – CHILDREN – Interim parenting issues as to the father’s time with the child – Whether the father’s time should be unsupervised and for extended periods as sought by the father or whether it should be supervised and for limited periods as sought by the mother – Whether the paternal grandmother is an appropriate supervisor in the event the father’s time is to be supervised – Paternal grandmother deemed appropriate supervisor – Father’s time to be supervised by paternal grandmother for shorter, more frequent occasions given child’s age – No order made as to parental responsibility

FAMILY LAW – PROPERTY – Interim consent orders in respect of property matters

Family Law Act 1975 (Cth)

B & B (1993) FLC 92-357; 16 Fam LR 353

APPLICANT: Mr Dimitriou

RESPONDENT: Ms Dimitriou

FILE NUMBER: PAC 4741 of 2012

DATE DELIVERED: 10 December 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 10 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Rafton

Rafton Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Bevan

Sarah Bevan Family Lawyers

Orders

Property

1. That the document headed Terms of Settlement signed by the parties and dated today shall become Court’s Exhibit 1in today’s proceedings.

2. That, by consent, orders are made in accordance with paragraphs 1, 2, 3 in its sub-paragraphs, 4, 5, 6, 7, 8, 9 in its sub-paragraphs and as amended including sub-paragraphs (d) and (e) which are in hand writing of Court’s Exhibit 1, copy annexed hereto.

Parenting

1. That the subject child B born … October 2010 shall live with the mother. 

2. That I propose to make no orders as to equal share parental responsibility at this stage and rely upon the provisions of the Family Law Act 1975.

3. That the father shall spend time with the subject child as follows:

   (a)Each Sunday from 2.15 pm until 6 pm. That time shall commence this coming Sunday 16 December 2012. On Sundays the father shall collect the child from the church attended by the mother and child at 2.15 pm.

   (b)Each Monday from 12 noon until 6 pm; and

   (c)Each Wednesday from 3 pm until 6 pm.

4. That on each of those occasions the father, accompanied by the paternal grandmother, shall collect the child from the front of the mother’s home at the commencement of time and shall return the child to the mother at the front of her home at conclusion of time.

5. That the parties shall not speak to each other and the paternal grandmother shall not become involved.  Any material, information or knowledge that has to be passed from one to the other will be passed in written form. 

6. That the father shall spend time with the child between 9 am and 11 am on Christmas Day 25 December 2012 and the same arrangements for collection and return shall apply.

7. That in the event, on any occasion, be it a Sunday, Monday, Wednesday or Christmas Day, if the paternal grandmother is not present when the father collects the child the mother shall not be required to make the child available to the father.

8. I note that the parties are to attend upon a Family Consultant for the preparation of a report and the matter will then be relisted before a Deputy Registrar for further directions.

9. That the parties shall attend upon a Registrar for the purpose of a conference at 9.15 am on 15 February 2013. If it is at all possible and, the Child Responsive Memorandum is obtained, the appointment could be expanded to include both property and parenting issues.

10. That liberty is granted to either party to relist the matter before myself upon giving seventy-two (72) hours notice.  If I am absent from the Registry the matter may be listed before any Judicial Officer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dimitriou & Dimitriou 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 PARRAMATTA

FILE NUMBER: PAC 4741 of 2012

Mr Dimitriou

Applicant Father

And

Ms Dimitriou

Respondent Mother

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me today in respect of a number of issues.  The first of those issues as presented to me was property, and the parties, to their great credit, have resolved that issue and I will shortly make orders by consent to reflect the agreement that they have reached. 

2. The other issue is the father’s time with the child, B who was born in October 2010 and is, thus, just two years of age.  The child lives with the mother and there appears to be no real dispute that that should continue into the immediate and long-term future.  The area of dispute is the father spending time with the child and how that is to be arranged and facilitated.  It is the mother’s proposal that the father spend very limited time with the child and that any time be supervised.  The father, so far as his application is concerned, seeks that he spend time with the child for extended periods of time unsupervised.

The material before me

1. I have read the material filed by each of the parties in regard to this aspect of the matter and I have read the affidavit of the paternal grandmother.  In addition, the paternal grandmother has attended here today and given some evidence in respect of her capacity as a supervisor.  She has been cross-examined by counsel for the mother.  She has told me that she does not believe that her son has done anything untoward so far as the child is concerned and I confess that that causes me some concern.  Cases such as B & B[1] make reference to the suitability of a supervisor who does not, or chooses not, to see that there is any real cause for that supervision.

   [1] (1993) FLC 92-357; 16 Fam LR 353

2. Supervision fulfils a number of needs for different people.  Firstly, it is there for the protection of the subject child - in this case, a very young child.  Secondly, it is there to try and alleviate the concerns of the residential parent when the child is away from that parent’s care.  Thirdly, of course, it is available as a protection for the person enjoying the time with the child in the event that any allegations of a similar or even quite dissimilar type are raised against him or her concerning their care of the child whilst with them.

3. The paternal grandmother concedes that she has not had a very involved relationship with her grandson and, as far as I am concerned, she does herself credit by saying this rather than endeavouring to invent a situation that is clearly not the case.  I am equally satisfied that she and the mother and, to an extent, as yet unknown to me, the maternal grandmother do not get along.  I am certainly satisfied that there have been restrictions placed in the past upon the paternal grandmother seeing the child and I accept her evidence that she has seen the child, absent the mother, on one occasion only. 

4. The parties, as I have said, have reached an agreement as to property.  It seems to me that I can take that as an indication that both of them are moving forward to lead separate lives.  They can divorce each other; they can dispose of their property.  What they cannot do is divorce themselves from both being parents of this child for an extended period of time into the future - something in the nature of 15 years and 10 months before this child is no longer a child.  Like it or not, the parties are both going to have to get along together, to a greater or lesser degree, to remain in this child’s life.  It is not a situation where one party is entitled to dictate to the other; it is a case where the interests of the child are the paramount consideration I am required to consider.

The law to be applied & Discussion

1. Section 60CC(2) of the Family Law Act 1975 (Cth) says that I must balance the child having a meaningful relationship with both parents against the risk of any harm to the child.

2. I concede the mother makes quite serious allegations against the father.  On balance, however, I am satisfied that the paternal grandmother is a person I can accept as a supervisor.  Whatever concerns I may have, I cannot conceive the lady that I have seen in the witness box would allow anything untoward to happen to her grandson.  I am satisfied that she will exercise a degree of control that will be for the effective benefit and protection of her grandson.  Having said that, it is obvious that she will need to be present on all occasions, and I stress that in the event that she is not present, for example, when the father attends to collect the child, time will not occur on that occasion.

3. The father tells me that he has Sundays and Mondays off work, that they are special days because of his employment.

4. It would seem to be universally accepted that for a young child, and this is a young child, lesser periods more frequently is the desired method for a child, in this case, it seems almost being reintroduced into his father’s life.  I am satisfied that there should be time each Sunday, Monday and Wednesday so that there is some split between times.  I am satisfied that on Sunday that period should be from 2.15 pm to 6.00 pm.  On Monday, I am satisfied that it should be from 12.00 noon to 6.00 pm and on Wednesday it should be from 3.00 pm to 6.00 pm.

5. The changeovers shall occur with the father and the paternal grandmother arriving at the front of the mother’s home.  The mother shall then take the child to the father’s car.  There will be no arguments.  If any information has to be conveyed about needs specifically for B on that day, a note will be made available.  Equally, the father will not engage the mother.  I appreciate this is entirely artificial but it seems to me, for the time being at least, necessary to enable this child to pass between his parents.

6. There is agreement that the father shall spend time with the child from 9.00 am to 11.00 am on Christmas Day, 25 December 2012, and I will order accordingly.  

7. I propose to make no order for equal shared parental responsibility at this stage.  I will rely upon the provisions of the Act itself, namely sections 61C(1) and 61DA. 

8. I order that the father spend time with the child indicated and as set out at the forefront of this Judgment.  I stress that in the event on any occasion, Sunday, Monday or Wednesday, the paternal grandmother is not present when the father attends to collect the child, the mother shall not be required to make the child available to the father. 

9. I note that the parties are to attend upon a Family Consultant for the preparation of a report and the matter will then be relisted before a Deputy Registrar for further directions.  I grant liberty to either party to relist the matter before me upon giving 72 hours notice – such relisting to be before myself if I am available in the Registry, and if not, before any other judicial officer.

10. As to property, the document headed Terms of Settlement will become Court’s exhibit 1 in today’s proceedings and, by consent, I make orders in accordance with paragraphs 1, 2, 3 and its subparagraphs, 4, 5, 6, 7, 8, 9 and its subparagraphs and as amended, including subparagraphs (d) and (e) which are in handwriting.

11. If it is at all possible and a Child and Parents Issues Assessment report is obtained, the future listing before the Registrar could be expanded to include both property and parenting issues, but I cannot promise this will be the case.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 10 December 2012.

Legal Associate:      

Date:    14 February 2013