FEKETE & FEKETE

[2012] FamCA 37

FAMILY COURT OF AUSTRALIA

FEKETE & FEKETE [2012] FamCA 37

FAMILY LAW – CHILDREN – interim orders

FAMILY LAW – INJUNCTIONS – interim orders by consent

Family Law Act 1975 (Cth)

APPLICANT: Ms Fekete

RESPONDENT: Mr Fekete

FILE NUMBER: SYC 5160 of 2011

DATE DELIVERED: 2 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd, SC

SOLICITOR FOR THE APPLICANT: Diamond Conway

COUNSEL FOR THE RESPONDENT: Mr Gramelis

SOLICITOR FOR THE RESPONDENT: George Xylas

Orders

(Orders made on 19 December 2011)

1. Pending further order the father not occupy the property at … D Street, Sydney Suburb 1.

2. The final parenting proceedings between the parties be expedited and if ready, the property application is to be heard at the same time as the final hearing of the parenting matter.

3. The lawyers for the parties confer and identify an appropriate post separation parenting program for the parties to attend with the intention that the provider of that program initially see the parties individually and if that professional believes it is appropriate at some point in time, bring the parties together for joint sessions.

4. The lawyer for the mother provide that professional with a copy of the affidavit of the family consultant of 16 December 2011 and each party is to provide that professional with a copy of the affidavits each have filed in the proceedings on behalf of their respective clients. 

5. The children C Fekete … August 2001 and N Fekete born … March 2005 (“the children”) live with their mother.

6. Previous interim parenting orders are discharged and pending further order:

   6.1.The children spend time with their father as follows:

   6.1.1.During school term each alternate week from after school Friday until 6pm Saturday.

   6.1.2.During school term after school until 7pm on Wednesdays in each other alternate week. 

   6.1.3.During school holidays that arrangement will continue except that the alternate weekend time referred to in order 6.1.1 will be from 9am on Friday to 6pm on Saturday.

   6.1.4.From 9am to 6pm on Father’s Day each year.

   6.1.5.From 9am to 12pm on the children’s respective birthdays each year in the event that that is not a school day and from 5pm to 6.30pm on a school day if the father is not already spending time with the children at that time.

   6.1.6.From 9am to 12 noon on Greek Orthodox Easter Sunday.

   6.1.7.From 5pm 25 December 2011 to 5pm 26 December 2011.

   6.1.8.From 12 noon 30 December 2011 to 5pm 31 December 2011.

   6.1.9.At any further time that the parties agree with one another in writing.

   6.2.During periods when the children are living with the mother, the mother is to use her best endeavours to facilitate and encourage telephone communication between the children and the father, with the father to telephone the children between 7:00 p.m. and 7:30 p.m. each second day except in the event of an emergency.

   6.3.Except as otherwise agreed between the parties, the father is to collect the children from school when his time with the children commences on a weekday and the mother is to deliver and collect the children to and from the father’s residence at all other times.

   6.4.Except as permitted by these Orders, the  father be restrained from attending at the children’s school other than Parent–Teacher nights, presentations, activities in which the children perform or are involved in with other students or as invited or required by the school.

   6.5.The parties provide a copy of these Orders to any school which the children may from time-to-time attend and authorise same to provide particulars to the other party of the children’s welfare, progress at school, education, special needs of the children, details of upcoming functions or activities and to provide the parties with copies of school reports and like information.

   6.6.Each party be and is hereby restrained from:

   6.6.1.Discussing with the children or with any other person in the children’s presence, details of these proceedings;

   6.6.2.Denigrating each other to the children or speaking with the children, or to any other person in the children’s presence, in derogatory terms about the other party or members of the other party’s household;

   6.6.3.Removing the children from the Commonwealth of Australia without the written consent of the other party or a court Order;

   6.6.4.Assaulting, intimidating, molesting, harassing, threatening or in any way interfering with each other or the children.

   6.6.5.Using physical force to discipline the children

   6.7.Each party is to notify the other party as soon as possible and, in any event, within 24 hours, of:

   6.7.1.Any serious injury suffered by the children whilst in the care of that party;

   6.7.2.The name, address and telephone number of each of the children’s treating medical practitioners and authorise those medical practitioners in writing to release to the other party particulars of the children’s health or treatment;

   6.7.3.Any changes to the party’s telephone numbers or address and provide such contact details as may be necessary to contact one another in the event of an emergency.

7. Liberty granted to either party to restore this matter on short notice if either party believes there has been a significant event or change in circumstances, which would justify them making an application for a change in these orders.

8. Pursuant to s.65DA(2) 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5160 of 2011

Ms Fekete

Applicant

And

Mr Fekete

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The children in this matter are aged 10 and 6. There are allegations of family violence and the eldest child is strongly aligned with the mother.

2. I made short term interim orders on 31 October 2011 that the children live with the mother and spend time with the father each Saturday from 10am to 5pm and each alternate Wednesday from 3pm until 7pm. These orders were due to expire the day the hearing came before me.

3. The father seeks to increase his time with the children so that they live with the mother four nights each week and with the father for three nights each week. The mother strongly opposes such an increase in the time the children spend with the father and seeks that the orders remain as they are.

4. Counsel for the father indicated that the father would consent to an order, pending further order, that he not reside in the property at D Street, Sydney Suburb 1. The mother lives with the children at Y Street, Sydney Suburb 1. The Y Street property shares a common boundary with the D Street property. Prior to the concession being made, counsel for the father indicated that a current bail notice precluded the father from coming within 50 metres of the mother’s home at Y Street and that his attendance at the D Street property would breach a condition of that bail notice.

DOCUMENTS RELIED UPON

1. The applicant mother relies on the following:

   5.1.Initiating Application filed 25 August 2011; and

   5.2.Mother’s affidavit filed 25 August 2011.

2. The respondent father relies on the following:

   6.1.Case Outline document;

   6.2.Response filed 17 October 2011;

   6.3.Father’s affidavit filed 17 October 2011;

   6.4.Father’s affidavit filed 24 October 2011; and

   6.5.Father’s affidavit filed 16 December 2011.

3. The parties also relied upon the Children & Parents Issues Assessment report of Ms R dated 16 December 2011.

SHORT HISTORY

1. The father was born in 1965 and is now aged 46 years.

2. The mother was born in 1972 and is now aged 39 years.

3. The parties married in September 1994 and separated on 3 April 2011.

4. The child C was born in August 2001 and is now aged 10 years.

5. The child N was born in March 2005 and is now aged 6 years

CHILDREN’S BEST INTERESTS

Primary considerations

1. I am required to make an order with the children’s best interests paramount. My primary considerations under s 60CC(2) Family Law Act 1975 (Cth) (“FLA”) are to ensure the children have the benefit of a meaningful relationship with both parents and are protected from harm.

2. In paragraphs 33, 36 and 42 of the mother’s affidavit, the mother indicated that the father had threatened to kill her. The father in his affidavit in response denies that he did so on each of those three occasions. The parties do not come into physical contact due to an Apprehended Violence Order against the father. There is however, still the possibility of psychological harm to the children in response to the high conflict between their parents in which they are being involved. This conflict is threatening the relationship that the children have with their father, which may or may not be supported by their own experiences of the father.

The additional considerations

1. Section 60CC(3) FLA sets out those matters which a court must consider in determining what is in the child’s best interests and I do so as follows.

2. The family report writer noted that the children were experiencing a level of anxiety and particularly C demonstrated anxiety and anger. The family report writer opined that this was due to being involved in the parental conflict. She conceded the possibility that the children’s perceptions may be influenced by their own experiences with the father, and also the possibility that they were influenced by the parties’ denigration of each other. The family report writer opined that if the children’s hesitation in spending time with the father was influenced by their own experiences, then the present arrangement “may be appropriate until they feel more settled.” However she also noted that if the children’s hesitation in spending time with the father was influenced by the mother’s negative portrayal of him, then limiting their time with the father would only exacerbate their negative perceptions of him and further threaten their relationship with him. The family consultant advised that the children need to be protected from exposure to inter-parental conflict and to have positive experiences with each parent, which are encouraged by the other parent.

3. I am mindful of the fact that the orders that I made on the last occasion worked without any great complaint. I do recognise that the children saw the family consultant recently, on 13 December 2011, and at that time it was observed that C, who is 10 years and 3 months old, presented with anger and a superior attitude towards her father and was uncomfortable in his presence, though stated clearly that she loves him. N, like C, communicated hesitance in spending overnight time with the father, but was comfortable when physically close and speaking to him. It was noted that C is aligned to her mother and reported the family issues from an adult perspective.

4. The mother has described a level of family violence in the marriage. There were a couple of incidents where she said she was physically assaulted. The father denies those incidents and says he only laid a hand on the mother to restrain her when she was violent towards him. He accused the mother of assaulting him, with scratching, slapping, punching and kicking.

5. The father admits turning up at the mother’s home to drop the children home early after a visit (at the request of C), even though there was an AVO saying he should not, and then stayed until the police came. He wanted to explain how she was doing the wrong thing putting his possessions on the nature strip for council cleanup.

6. The mother recently ignored an order that I had made for the children to spend time with their father because there was a work function on. I have not heard or read any evidence from the mother about that at all.

7. The father’s decision to remain at the mother’s home despite Apprehended Violence Orders due to an issue about property, and the mother’s decision to withhold the children from the father due to lack of cooperation with regards to other commitments, indicates how conflicted the parties are and how entrenched they are in the righteousness in their positions.

CONCLUSION

1. It is quite clear the parties are in high conflict at the current time and part of the orders I made that they go to a post separation parenting program is an attempt to improve that situation.

2. The family consultant has identified a potential risk to the children if they are being exposed to a negative portrayal of the father in the mother’s household, and their time with the father remains constricted.  If that turns out to in fact be a real risk and continues for a long period of time, then permanent damage could be done to the relationship between the children, particularly C, and their father, as negative portrayals of the father are exacerbated. There is an indication there might be a real risk in relation to a child who is entering adolescence who has on the Family Consultant’s Report, quite a deal of anger towards her father. With that situation being apparent, it seems to me this is the type of case where the family situation is to be looked at on a final basis as soon as possible. I will expedite the final hearing in the parenting matter for that reason.

3. In the meantime, before me now is evidence that during a period where the children have spent time with the father on ten occasions without any major reported incident or complaints of the mother. I acknowledge the context that only the week prior to the hearing the Family Consultant saw the children and reported C’s level of anger towards the father. I take note of the family consultant’s statement that if I made a decision based upon what the consultant says could be the experiences of the children, I would be hesitant in extending the current arrangements until the children feel more settled.

4. I am concerned about some quite serious allegations by the mother, particularly the fact that the father threatened her on three occasions to kill her. I note that the father has denied each of those occasions occurred, and of course in the confines of this hearing I am totally unable to make a determination as to who is telling me the truth about that.  I have a clear indication of unreasonable behaviour on both sides: the father’s failure or refusal to leave the property, which has lead to the current charge of breaching an AVO; and the mother’s alleged unexplained failure to comply with my orders on one occasion.

5. Quite clearly on all of the evidence, both parents are in high conflict with one another and the children are caught right in the middle. I intend to order the parents to attend a post-separation parenting program, to attempt to assist them to work on their relationship as parents of the two girls. I indicated to the parties that although they may not ever like one another, they are the parents of the girls, and if they are unable to work together in a business-like and non-conflict manner in front of them, then some quite serious psychological damage will be done to the children, particularly as they enter adolescence.

6. I am not convinced on the material that I cannot order some overnight time with the father and I will not, in the short term, move very far from the current arrangements.  I am mindful that there was one occasion that C asked to come home early and I will tread warily. It has been the case that there has not been an incident in the last ten occasions and we will just how things progress. If there is a new incident or problem, that can come back to me and I will have another look at it whilst the parties are getting on with preparing the matter for a final hearing and getting some post-separation parenting assistance.

7. To ensure the children rebuild their relationships with their father I intend to increase the time the children spend with him slightly. I also take into account the level of anxiety the children are currently experiencing and so do not seek to increase the time with the father to a great degree.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 February 2012

Associate:   

Date:  2 February 2012