Efstathiou and Efstathiou

FAMILY COURT OF AUSTRALIA

EFSTATHIOU & EFSTATHIOU

[2008] FamCA 784

FAMILY LAW – CHILDREN – With whom a child spends time – Substantial and significant time

Family Law Act 1975 (Cth)

APPLICANT:

Mr Efstathiou

RESPONDENT:

Ms Efstathiou

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLF

1347

2006

DATE DELIVERED:

27 August 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

26 & 27 August 2008

REPRESENTATION

FOR THE APPLICANT:

In person

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER

Ms M. Stavrakakis

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Victoria Legal Aid

Orders

That the children of the relationship namely D born … October 1995 and G born … January 1998 shall live with the wife.
That the parties shall have equal shared parental responsibility for the said children.
That the children shall spend time with the father as follows:
(i)Each alternate week from after school Friday until the commencement of school the following Monday beginning on 29 August 2008;
(ii)The first week of school term holidays from the conclusion of school on the last day of term for a period of seven consecutive nights, with the father’s alternate week-end time in paragraph 3(i) to be suspended during school term holidays and to re-start the first Friday thereafter;
(iii)For three weeks during the summer school vacation by agreement beginning at 11.00am on Christmas Day with the father’s alternate week-end time in paragraph 3(i) to be suspended during the long summer vacation and to re-start the first Friday thereafter;
(iv)From 11.00am Christmas Day;
(v)The parties will share all religious holidays and other significant occasions by agreement but, failing agreement:
(a)On Father's Day from 9.00am to 6.00pm if it should not fall on a day of alternate week-end time in paragraph 3(i);
(b) On the children’s birthdays and on the father’s birthday from 3.00pm to 7.00pm;
(c) From 9.00am Easter Sunday to 6.00pm Easter Monday in 2007 and each alternate year thereafter;
(vi)At any time when the mother is unavailable to care for them overnight; and
(vii)As otherwise agreed.
That each parent shall permit the children to contact the other parent when in their care, but the mother shall not be permitted to telephone the children in week-end time with their father, although the parents may make reasonable telephone calls to the children in holiday periods.
That the mother shall authorise the children’s school to provide, at the father’s expense, all necessary information relating to the children.
That the father shall undertake a parenting course and each parent shall undertake a parenting after separation course.
That each party shall not denigrate each other in the presence of the children.
That each party shall immediately inform the other of any serious injury or illness associated with the children.
That pursuant to s 65DA and s 62B, 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.
That the appointment of the Independent Children's Lawyer shall be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Efstathiou & Efstathiou is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1437 of 2006

MR EFSTATHIOU

Applicant

And

MS EFSTATHIO

Respondent

REASONS FOR JUDGMENT

INTRODUCTON

Since the parents separated in 2002, 12½ year old D and 10 ½year old G have lived with their mother. They saw their father only intermittently until 2006. Each parent blames the other parent for that. In any event, interim consent orders were made on 10 July 2006. Since then, the children have spent every alternate weekend with their father from Friday afternoon until Monday morning, half of school holidays and on other special occasions.
The father now wants the children to spend week-about time with each parent. The mother wants the current arrangement to continue, although I note that until very recently, she had been advocating instead for a completely flexible arrangement, dependent upon the children's decision as to when they would see their father.
The Independent Children's Lawyer supports maintaining the current regime.
Both parents have represented themselves. The father has used the services of an interpreter.

BACKGROUND

The father is a self-employed tradesman. He is aged 48. The wife is aged 51 and she is engaged in home duties. They married in May 1994 and separated on 15 September 2002.

DOCUMENTS RELIED UPON

The husband relied upon his Amended Application for Final Orders filed on 15 November 2007, his questionnaire filed on 18 December 2007, his affidavit filed 23 July 2008, and his financial statement filed 23 July 2008.
The wife relied upon her Further Amended Application for Final Orders filed 28 March 2008, her questionnaire filed 29 October 2007, and her affidavit and financial statement both filed on 20 August 2008.
The ICL relied upon the Family Report of Mr N dated 31 March 2008. No-one wanted to cross‑examine Mr N.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act1975 (as amended) sets out the objects of Part VII of the Act to ensure that the best interests of children are met by a number of means. Section 60B(2) sets out the principles underlying the objects. They are.
“(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).”
In deciding a particular parenting order, the best interests of the children is the paramount consideration (s 60CA). The Act sets out the primary and additional considerations for the court in determining what is in the children's best interests. I will return to the detail in a moment. I must also consider how the parties have acted in the past in considering the future.
There is a presumption that it is in the children's best interests for the parents to have equal shared parental responsibility. The presumption relates to the allocation of parental responsibility, not the time the children spend with each parent. In this case, the shared parental responsibility is agreed.
I must then consider whether spending equal time with each parent would be in the children's best interests and whether it is reasonably practicable. If not, I must consider whether the children spending substantial and significant time with a parent is in their best interests.

THE ISSUES

I will turn then to the issues which can most conveniently be dealt with under the umbrella of the s 60CC(2) matters. I will deal first with the primary considerations. Before I do that, I note that I had the relevant sections of the Family Law Act copied and given to each party at the start of the case.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Although the mother gave some particularly mixed messages about it, overall she seemed to agree that the children do have a meaningful relationship with their father. I proceed on the basis that they do have a meaningful relationship with both of their parents, they love each parent, and they need each parent. It is only the configuration of time that they spend with each parent that is in dispute.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

Although the mother referred to abusive behaviour towards her during the course of the marriage, it was not an issue pursued in the course of the case such as to lead me to any definitive findings about it. She has agreed that the children will be spending substantial and significant time with their father. I take it as implicit from that, that she sees no need to protect them from their father and the issue of risk is fortunately not a real issue in this case.
I do note that very late in her cross‑examination, she claimed that the father had slapped G in the face. It was not in her affidavit. It is not something she told Mr N. It was not in her evidence until very late, and it was something about which there was absolutely no indication from G or D to Mr N, either by what they said or by how they interacted with their father.
Again I note that in agreeing to the children spending substantial time with their father, I cannot rely on what she said as evidence of a genuine ongoing concern of a risk to the child of the magnitude she seemed to suggest in that passage of cross‑examination.
Similarly, although the father talks of psychological pressures that the mother applies to the children, including telling them that he raped her, talking to them about financial matters, and telling them to be quiet and watch television so she can sleep during the afternoon, in the same breath, he suggests that the children should spend half their time in her home. He too cannot be taken to suggest that they are genuinely at risk in their mother's care.
There is however one genuine risk for these children. It is, as counsel for the ICL has said, the risk of harm to them from their parents' conflict. It was a conflict that I saw played out in technicolour detail. Without the benefit of the filtration of legal representatives, I witnessed how the parents spoke to each other. To call it disrespectful is an understatement. It was appalling. They are both intelligent people. I suspect that they are both very good people. They are both people who love their children deeply, but the way they related to each other was shocking. I will return to that.
I must now consider the additional considerations.
(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;
Not surprisingly, given the gulf between the parents, they provide different accounts of the children's views. The mother talks as if the children want less time with their father. The father talks of the children wanting more time with him. When interviewed by the one independent person, the Family Consultant, D made it clear that he did not want changes to the current arrangements. He did not want to go to his father's on weekdays. He was confident in his father's love and he felt "frustrated and sad" overhearing his parents arguing. He described his little sister as crying when she heard her parents fight.
G told Mr N that she does want to see her father. Her view was summarised at paragraph 55 of the Family Report:
When discussing a variety of emotions and feelings, [G] indicated that sometimes she feels angry going to father because she knows it will be boring. She added that she also feels confused having to go back and forth between both parents and at times feels like a yoyo. In her view, [G] said that to improve the situation, she would like to be able to spend time with her father as she chooses.
The Family Consultant was left in no doubt, based on what the children said, on all the interviews, and upon his observed interactions between the children and their father, that both children certainly do value their relationship with him and want it to flourish.
The Family Consultant’s account is, as I said, an objective one. Where it differs from a parent's account, it does not necessarily mean that a parent is being untruthful. Children may tell one parent one thing and something quite different to the other. It may be because they feel that is what their parent wants to hear. It may be because they are genuinely torn between different feelings in different households.
It is important to weigh the children's views against all the evidence. The Family Consultant’s expert assessment of these children's views as apparently genuine, is an influential piece of evidence. So is the fact that the views expressed by them were not black and white. They spoke in a balanced way, not like children whose mother had directly tried to turn them against their father, as the father believes to be the case. However, whether she has done enough to encourage the children in their relationship with their father is something which I will consider further.
(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);
(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:
There is nothing in the Family Report that raised any concern about either parent's capacity to care for the children. There is a need for the father to be more conscious of spending good social one-on-one time with his children, but I conclude that the children do overall have a good relationship with each parent. The fact of spending the last six years living in their mother's household means that their relationship is qualitatively different with her. There is an ease in the relationship arising from her primary care, but they also have a good relationship with their father.
Overall, there did not appear to be any substantial issue about how each parent meets the children's daily needs. The mother raised some small questions about that, but I thought they were indeed very small and reflected more on her attitude to the father than on his capacity to meet the children's daily needs.
The parents' respective criticisms were more about the higher‑order aspects of emotional care. I am left with the sad impression that neither parent genuinely understands the importance of the other parent in the children's lives. That is really the main area of my concern in the way both of them parent the children.

(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;

This is, as I have said, a real concern in this case. Both parents fully blame the other. Each says the other undermines their relationship with the children.
It is plain that there is bad blood between the parents. It is plain from what they say, it is plain from what the poor children say, and it is plain from the Family Consultant’s analysis. I cannot make final findings as to the historical reasons but, for example, from the wife's question to the husband, "Why did you not say goodbye to the children when you left for good?" and his answer, that it was because the wife locked the door and did not let him hug the children, it became clear that the wounds run very deep – on both sides – even all these years later.
The husband described the relationship between himself and the wife as “bad”. She described it as “worse than bad”. It seems to be the one thing about which they almost agree. While they continue to blame each other, they show remarkably little insight into their own contributions.
It was clear to me that both parents are disrespectful of the other's role in the children's lives. I was struck by each parent's incapacity to act respectfully to the other, or to facilitate a proper relationship between the children and the other parent.
Throughout his evidence, the father referred to the mother as "this woman". He had very little good to say about her, although he was given many opportunities by the ICL’s counsel. From all accounts, his children are lovely children. Not necessarily through any fault of his own, but through circumstance, they have largely been raised by their mother. There must be some credit to her for these lovely children, but he could not find it in his heart to acknowledge that.
For her part, the mother was ready to accuse the father of all sorts of sins, including a broad based attack upon him as a hypocrite. She managed in the course of her evidence to even challenge his love for the children, a position that was entirely unreasonable. She claimed that she believed it was very important for the father to have a relationship with the children and that the children love their father. To that end, she said she encouraged them to go with him by saying words to the effect, "Whatever your father is or does, he is still your father," in my view, a fairly tepid form of encouragement.
When the mother was asked to explain her professed understanding of the importance of the relationship, she spoke in generalities of the father's responsibilities "by law and by God" to interact, help out and look after them in every way. They were grudging answers.
When asked what was good about their father, all she could offer was that he liked children generally, but did not know how to interact with them. Late in her evidence, she actually told me that the children were very resistant to seeing their father. She said they were so angry about it that they accused her of being “guilty” of making them see him. This was not in her affidavit. It was not said to the Family Consultant. The children never reported it to the Family Consultant, nor did their response to their father reflect such a stance. It was troubling evidence and underlined the difficulty she had in genuinely encouraging the children with their father.
The parents' negativity towards each other is so profound that it is impossible that the children are fully shielded from it. I have no confidence at all that they can deal adequately in the way necessary to share the children in a week-about arrangement. I am not satisfied that either has the proper capacity to fully encourage the relationship with the other parent.
However, it is important to observe that in the six years since separation, and although I am not entirely satisfied the mother has done all that she could to foster the children's relationship with the father, the reality is that the children have been emotionally free to love their father. The proof of that can be seen in the easy way they relate to him, and the ease with which they told the Family Report writer that they value the relationship with him and want it to continue. And, despite the mother's negative attitude to the father for the several years that have passed since the interim orders that were made, they have mostly been complied with.

(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;

These children have always lived with their mother. Their father in fact did not start litigation to change the arrangements at all for about four years after separation. Another two years has passed since then - not through the fault of either party.

It means that for six years the children have been in the routine of living with their mother and spending time with their father; a particularly settled routine in the last few years. They are generally comfortable with the arrangements. They have expressed their views clearly. To change their circumstances significantly to a week-about arrangement could be one that is fraught with difficulty for them.
As I said to the parents during the hearing, it is not fairness to them that I need to consider, it is the children, the innocents, who have an established and secure routine. It is an important consideration in this case.

(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;

This is not an issue in this case, except so far as it relates to the children being permitted to have direct or emotional contact with each parent and I have already dealt with that.
(f)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;
There is nothing in particular that I want to say about that, except that the children are most certainly at ages and stages in their lives when they need the influence of both their parents.
(g)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;
There are special considerations if the child is an Aboriginal child but that is not relevant in this case.

(h)any family violence involving the child or a member of the child’s family;
(a)any family violence order that applies to the child or a member of the child’s family, if:
(ii) the order is a final order; or
(iii) the making of the order was contested by a person;

I must consider aspects of family violence but I have already dealt with that so far as is relevant.

(i)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;

These children deserve their childhood, uninterrupted by further litigation. I hope that the orders I make will let them enjoy themselves, will let them enjoy their parents, and will let their parents enjoy them. I hope that certainty and finality of orders will contribute to that. I hope too that the structure of the orders will minimise the need for the parents to overlap or to fight about issues.

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

There is another circumstance that I must address. The mother was diagnosed with breast cancer in April 2007, described as Stage 2, with local lymph nodes affected. The Family Consultant spoke with her doctor and was told that although chemotherapy was prescribed as important, the mother had decided not to proceed with it. In the doctor's opinion her prognosis could be compromised in that respect. The mother does however take medication, Tamoxifen. She is doing well. Her description was that “the cancer remains but has gone down”. That is a good sign.
Of course, the ardent hope is that her health will continue to flourish, but any threat of recurrence does underline the need for the children to maintain a meaningful relationship with their father as a crucial backup.

CONCLUSION

I conclude it is not in the children's best interests to be in a week-about shared arrangement. It would be a very significant change from the regime in which they have now lived for six years. It is inevitable that as a result of that regime, they have a primary attachment to their mother. They are happy and settled with her, but are also happy and settled regularly spending time with their father. They are lovely children who behave well at school and that is a credit to both parents, but the mother should have a particular acknowledgment given her significant input.
It is very important to me that the shared care arrangement was rejected by both children. That in no way reflects poorly on their relationship with or their love for their father. Many children simply find it too unsettling. Little G, even though only 10½, actually used the word "yoyo", an apt reflection on how unsettling it is to keep changing homes, rather than a negative reflection of her relationship with her father.
The children seemed to speak frankly and in a balanced way to the Family Report writer. Accepting his professional opinion about that, I must give weight to their opinions.
As I have said, sadly the parents cannot communicate at all about the children. I accept the expert's opinion that they are incapable of sharing the children's day‑to‑day care in a way that would promote the children's best interests. Their bitterness and hatred for each other were palpable in court. Their bitterness and hatred runs so deeply that they do not see or hear how their children are suffering, even when D says so directly to the Family Consultant.
If the children continue to live predominantly in one household, there is less need for communication and cooperation between parents and less potential exposure to conflict.
The father agrees to undertake a parenting course. That is a good idea and to his credit, and shows me how deeply he cares for his children and how he wants to make sure he is appropriately available for them. I think both parents too could benefit from a Parenting After Separation course. It might be naive to think there is any hope at all that their communication could improve, but I would urge them both to make any effort that they can, having now heard the observations I have made.
If they put their considerable talents and energies into positive parenting, they will achieve wonderful things with these lovely children.
Although this is not the result that the father has sought, with his continuing patience and involvement with the children, I would not be at all surprised if, as they get older, they seek more and more time in his care. Soon they will be big enough to be saying, "I want to go to the other parent's home," at various times that suit them.
In the meantime, in my view it is entirely appropriate that if for any reason the mother is unavailable to care for the children - and we have concentrated only on terrible reasons - I hope it might be nice reasons too like a holiday - then the children should stay with their father.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 27 August 2008

[2008] FamCA 784

27 August 2008

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