Frangoulis and Xennon

[2019] FamCA 103

FAMILY COURT OF AUSTRALIA

FRANGOULIS & XENNON [2019] FamCA 103

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Where the father was required by earlier order to engage with a therapist who has experience with anger management and family violence – Where the parties are in dispute as to whether there was compliance – Where the professional expertise with respect to anger management and family violence of the therapist is disputed by the mother – Where the father seeks to have time with the children reinstated – Where the father seeks to have time with the children in the substantial presence of a supervisor.

Family Law Act 1975 (Cth) ss 60CC, 60CC(2), 60CC(2A)

Deiter & Deiter [2011] FamCAFC 82
Marvel v Marvel [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Frangoulis

RESPONDENT: Ms Xennon

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4110 of 2015

DATE DELIVERED: 28 February 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 21 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alevizos

SOLICITOR FOR THE APPLICANT: Harry Alevizos

COUNSEL FOR THE RESPONDENT: Ms O'Connor SC

SOLICITOR FOR THE RESPONDENT: SE Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Praolini

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That paragraph 3 of orders made 27 July 2018 is discharged.

2. That the father will attend upon Mr F for a further two (2) sessions and at the conclusion of which Mr F will prepare a report directed to the following matters:-

   (a)A summary of his expertise, experience or skillset in respect of family violence and anger management;

   (b)A report directed to the father’s engagement with therapy and focussing on anger management and family violence;

3. That to assist with the therapeutic intervention by Mr F, the father will provide to him the following:-

   (a)       The report of Mr B;

   (b)       The report of Ms D;

   (c)       The judgments of 27 July 2018 and 19 November 2018.

4. That upon the expiration of twenty one (21) days from the provision of the report by Mr F, indicating that the father has successfully engaged with counselling and therapy directed to family violence and anger management, the father’s time with the children will be reinstated pursuant to paragraph 1 of orders made 4 August 2017, with further amendment that his time with the children will only require the substantial presence of either Mr or Ms C.

5. That the parties have liberty to apply on short notice.

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 Frangoulis & Xennon 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 ADELAIDE

FILE NUMBER: ADC 4110 of 2015

Mr Frangoulis

Applicant

And

Ms Xennon

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Frangoulis (“the father”) and Ms Xennon (“the mother”) continue to be in conflict in respect of the ongoing parenting arrangements for X born in 2009, Y born in 2011 and Z born in 2013 (collectively “the children”).

2. The applications of the parties for final parenting and property orders have been listed for trial to commence on 2 September 2019.

3. Orders were made by Judge Heffernan on 4 August 2017 providing that until further order the father spends time with the children supervised by Mr and Ms C in the first week on Saturday from 2.00 pm until 5.00 pm and in the second week on Sunday from 2.00 pm until 5.00 pm save and except that the father’s time with X is subject to her wishes.

4. There had been compliance with the orders until the mother stopped the children seeing the father based upon an allegation that on 8 April 2018 he spent time with the children without the supervision by Mr and Ms C. The mother issued a Contravention Application on 3 May 2018 and following a hearing on 20 July 2018 and my judgment delivered on 27 July 2018, I found that the father had contravened paragraph 1 of orders made 4 August 2017 and required that he enter into a Bond for a period of one year upon the following conditions:-

   (a)That he be of good behaviour during the period of the Bond;

   (b)That he comply with all current and future parenting orders.

5. The father entered into the Bond.

6. As discussed in my earlier judgment the focus of the mother was not that there should never be a relationship between the father and the children, but that there were serious allegations made that the father had perpetrated family violence. Judge Heffernan considered that the father should attend upon Mr B, psychologist, for assistance in respect of anger management, controlling and coercive behaviour. It was intended that a report would be published and provided to Ms D, the family consultant who was instructed to provide an update family assessment in anticipation of a hearing as an addendum to her earlier report of 12 April 2017.

7. To better understand the context of the current dispute, it is necessary to set out the relevant portions of orders made 27 July 2018:-

   (2)That the father shall attend upon [Mr B] (psychologist) or if unavailable such other therapist nominated by the Independent Children’s Lawyer (“ICL”) with expertise in the area of anger management and family violence and to comply with all instructions and further counselling and/or therapy as may be recommended by him or her.

   (3)At the completion of five (5) visits with the nominated therapist which are to occur within ten (10) weeks of the date of this order, the father is to obtain a report from the therapist as to his engagement with therapy and that he has successfully completed the five (5) visits.

   (4)If the father has not completed the five (5) visits as nominated THEN until further order, paragraph 1 of orders made 4 August 2017 shall be suspended.

   (5)Upon the provision of a report from the nominated therapist that the father has successfully engaged with the therapy, paragraph 1 of the orders made 4 August 2017 shall be amended by the deletion of the words “supervised by [Mr and Ms C]” and the addition of the words “in the substantial presence of [Mr and Ms C]”.

8. For the following reasons the mother did not consider that the father had complied with the orders and his time with the children has been suspended:-

   (1)That the father did not attend upon Mr B but chose to attend upon Mr F, psychologist.

   (2)That if the Court accepts that Mr B was not available and that it was appropriate for the Independent Children’s Lawyer (“ICL”) to nominate a therapist, Mr F does not have, or it has not been established that he has, “expertise in the area of anger management and family violence”.

   (3)That in any event the father has not completed five therapeutic visits with either Mr B or any nominated therapist within the 10 week period as set out in the order.

   (4)That the report from Mr F is not directed to the gravamen of the referral namely, to provide a report and opinion as to matters relevant to the father’s anger management and family violence issues.

THE FATHER’S APPLICATION

1. By Application in a Case filed 15 January 2019 the father seeks the following relevant orders:-

   2.That the mother forthwith deliver up the children to the father as provided for in paragraph 5 of orders made on 27 July 2018.

   3.That the said children spend additional ‘make up’ time with the father.

   4.That the child [X] engage in re-unification therapy with the father with a therapist to be agreed or in default of agreement as nominated by the Independent Children’s Lawyer and the father and the said child attend upon such therapist on such dates and times as nominated by such therapist.

2. The application is supported by a short affidavit.

3. It is argued on behalf of the father that Mr B was unavailable to assist the father, whereupon he requested that the ICL give consideration to nominating Mr F to undertake the therapy and provide a report.

4. The father contends that approval was provided by the ICL and that he had three sessions with Mr F on 21 and 30 August 2018 and 18 September 2018 followed by a report on 4 October 2018.

5. The father contends that Mr F could not accommodate further appointments during the 10 week period, but he did see him on 4 and 16 October 2018.

6. In anticipation of the father’s involvement with Mr F satisfying the provisions of paragraphs 2 and 3 of the orders the father attended at the handover venue on various occasions in October and November 2018.

7. On 25 November 2018 none of the children were delivered to the contact centre and upon a further enquiry, the mother had apparently indicated that the children would not be available for handover. The father has not spent time with the children thereafter.

8. The mother seeks that the father’s application be dismissed. The mother maintains that the father has not complied with the orders of 27 July 2018 and until the father has obtained “a report from [a] nominated therapist that the father has successfully engaged with therapy” the children’s time with the father should not resume.

9. The mother seeks to place the issue of family violence in context by reference to the following extract from a report of Mr B dated 28 August 2017:-

   In summary, [the father] was not open to consideration of any difficulties with reactivity or emotional regulation. He was not open to consider any role that he might play in the conflict with [the mother] or any contribution to [X’s] difficulties or possible dilemmas that might arise for the other children. I have decided to terminate contact with [the father] after 2 visits, rather than continue for 6 consultations as had been initially ordered. I did not feel that further contact would enable any helpful resolution to this matter and was concerned that continued discussion might serve only to further entrench a fixed and limited position.

10. The submission of the mother is that the father lacks insight into his aggressive and coercive conduct and targeted therapy was necessary not only for the father to understand the damage and impact on the children of family violence (even if not directed to them) but also the adverse effect on the mother.

11. The mother’s response and opposition to the father’s application is tempered by her unequivocal statement that she “will agree to reinstate the father’s time once he has instructed Mr B or another appropriately qualified counsellor, engaged in the court ordered therapy and obtained a report”.

12. It is therefore surprising that the parties have not been able to negotiate a way forward when there is general agreement that the interests of the children are properly served by them maintaining a relationship with the father.

13. At a hearing on 19 November 2018 the following relevant submissions appear:-

    At page 3, line 25:-

    HIS HONOUR:         I don’t know what the issue is about that. I don’t know whether there has been a concession that the therapist has the requisite skill. I don’t know whether the Independent Children’s Lawyer nominated that therapist. I don’t know.

    MS O’CONNOR: No. Besides that issue – it is addressed slightly in my client’s affidavit. Besides that issue, which I would call more of an elastic interpretation type of issue, it might be that reading between the lines in relation to the choice of therapist, if [Mr B] wasn’t available, it was open to the parties to comply with the request of the ICL or consent of the ICL. But in any event there had to be five sessions. And there haven’t been. And the time is up. And time stops.

    Then on page 4, line 5 the mother’s senior counsel succinctly sets out her client’s position:-

    MS O’CONNOR: There could be. There has been no communications in relation to the matter. My client is of the very firm view that she wants to make sure that the father has had the counselling that both Judge Heffernan and your Honour had envisaged he should have before he has time with these children in a loose or unsupervised way. That has not occurred.

14. At page 4, line 20 I highlighted that with some concessions on both sides the interim issue could be resolved, particularly in circumstances where Mr Alevizos recognised that the father had only seen Mr F on three occasions following the making of the orders.

15. The father’s position relies heavily upon the attitude of the ICL.

INVOLVEMENT OF THE ICL

1. The ICL supports a resumption of time with the father providing it is either supervised or that the supervisors are generally present when the children are with him.

2. By email to the parties’ solicitors of 14 August 2018, the ICL advised that on the basis that Mr B was not available to undertake the therapy as ordered he had given consideration to Mr F being the nominated therapist.

3. Later that day the father’s solicitor circulated a copy of the curriculum vitae of Mr F. It was again confirmed that Mr B was going on leave and was not available to undertake the sessions.

4. On 15 August 2018 the ICL considered that Mr F “appears to be suitably qualified, and his language skills will obviously be of considerable convenience in this matter.” As a result, the ICL was prepared to nominate Mr F to undertake the therapeutic intervention.

5. It appears that there was some challenge to the father’s contention that Mr B was not available.

6. To avoid any doubt, the contents of the following email exchange between the ICL and the mother’s solicitors of 15 August 2018 is of assistance:-

   Seriously … I have just telephoned and spoken with [Mr B’s] secretary … who spoke directly to him … he is about to commence six weeks leave to travel overseas – and is definitely NOT available to conduct the therapy in accordance with the court orders.

   I approve of Dr. [F] conducting the therapy.

7. For reasons that are not entirely clear, the mother repeated her position in respect of Mr B in a letter dated 18 October 2018:-

   1.Our client maintains that your client has actively avoided the instruction of [Mr B] on account of his prior unfavourable report. As your aware, there was a flurry of correspondence in relation to [Mr B’s] availability. Given the apparently contradictory information passing between the parties, we wrote to [Mr B] on 27 August 2018. We attach a copy of that correspondence. We further attach for your information a copy of the response received from [Mr B] dated 28 August 2018.

8. The ICL further confirmed his position by letter to the parties on 25 October 2018 setting out the extent of his enquiries as to the availability of Mr B.

9. The ICL considered that the nomination of Mr F was “entirely within the discretion of the Independent Children’s Lawyer in accordance with paragraphs 2 and 3 of His Honour’s Orders. I have exercised that discretion, and the issue is concluded”.

BEST INTERESTS OF THE CHILDREN

1. Section 60CC(2) of the Family Law Act 1975 (Cth) (‘the Act”) provides as follows:-

   The primary considerations are:-

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

2. As discussed, the parties recognise the benefit to the children of there being a relationship with the father.

3. The mother’s focus on considerations of family violence are relevant factors. The issue is the subject of allegation by the mother and was given careful consideration by Judge Heffernan. Orders were made that would have assisted the Court in understanding, firstly, whether family violence is a relevant consideration and if so, whether the father may have benefitted from the therapeutic intervention as ordered.

4. It is not the Court’s position that there has been a finding that the father either has perpetrated family violence or that the children are at risk. It is an appropriate enquiry by the Court to ensure any risk to the children (if same exists) is minimised such that the application of s 60CC(2A) does not outweigh the benefit of the children having a meaningful relationship with the father.

QUALIFICATIONS OF MR F

1. The mother’s Senior Counsel tendered a curriculum vitae summary for Mr F which confirms that he holds an Honours Degree in psychology and upon becoming a registered psychologist in 1992:-

   …

   He commenced full time private practice in 1996 and has extensive experience across health, welfare, education and management sectors specialising in trauma psychology, work injury management, and migrant mental health.

2. It is noted that there is no reference to Mr F having expertise or experience in the area of family violence or anger management. However, I do not discount the possibility that he may have the requisite experience but that it is not his prime professional focus.

3. The father relies upon the report of Mr F dated 4 October 2018.

4. Mr F confirms that the father was referred to him by his treating general practitioner for anxiety arising out of marital separation in June 2016 and that he has been engaged with him since that date.

5. The report does not indicate the extent of the information that the father’s solicitor provided to him, but he does note that the parties separated in 2015 “amid allegations of violence that [the father] strongly denied and has maintained to this date”.

6. The report does not focus upon anger management or family violence. It considers the father’s presentation and states that “there were no clinical indicators that the children are unsafe with their father and all contact was described in warm and caring terms”. That may very well be the case, but the purpose of the orders was to provide the Court with a better understanding of whether any attendant risk in respect of family violence is a factor or feature that needs to be brought to account. The involvement by the father with a psychologist was not meant to be predicated upon an acceptance by him that he is the perpetrator of family violence.

7. Given the mother’s stated position, there might also be some advantage if her anxiety was ameliorated by a properly directed assessment and report.

INTERIM PARENTING

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence as follows:-

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

2. In SS & AH [2010] FamCAFC 13 the Full Court considered the care that should be exercised in making findings in interim proceedings:

   88.… In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

1. In Deiter & Deiter [2011] FamCAFC 82 the Court considered the situation where contested facts related to an assessment of risk and said at [61]:-

   Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending upon the evidence that is before the Court.

SHOULD AN ORDER FOR REUNIFICATION THERAPY BE MADE?

1. The father seeks an order that he and X engage in reunification therapy.

2. There is no evidence provided in support of the application other than to acknowledge that at his election the father does not presently see X because he considers that she was anxious and he did not wish to exacerbate her presentation.

3. I am not minded to make the order that the father seeks. For reunification therapy to be appropriate I consider that there needs to be an assessment undertaken that would satisfy the Court that the potential risk to the child of engaging in what can be an intensive program is outweighed by the reasonable prospect of a successful reinstatement of X’s relationship with her father.

4. The concept of reunification therapy is not a matter of abstract consideration but rather, should be the subject of evidence that it is a proper therapeutic process and will be undertaken by a practitioner with demonstrated expertise.

5. A report should be obtained from the nominated practitioner that brings to account the issues raised in the proceedings and provides an assessment as to the prospects of success, limited or otherwise.

6. Those matters have not been the subject of consideration and I do not propose to make the order as sought.

CONCLUSION

1. The father’s application is deficient in the orders that it seeks. It is difficult to understand why the father would not have been more proactive in seeking to put aside and allay any fear or concern that the mother may have and to satisfy the Court that he does not pose any risk to the children.

2. Rather than adopt what might be considered a pragmatic approach, the parties have allowed their internecine dispute to potentially adversely affect the children in circumstances where there is recognition that the children would benefit from seeing their father, but that the parties have been unable to resolve their differences such that it could occur.

3. I must be guided by the objects of the Act and be satisfied that if appropriate to do so, paragraph 5 of orders made on 27 July 2018 should apply.

4. I will order that paragraph 3 of orders made 27 July 2018 be discharged and in its stead the father will be required to provide to Mr F the following:-

   (1)The report of Mr B.

   (2)The report of Ms D.

   (3)The judgments of 27 July 2018 and 19 November 2018.

5. In addition, the father will be obliged to attend upon Mr F for a further two sessions and thereafter he will seek that a report be prepared directed to the following:-

   (1)A summary of his expertise, experience or skillset in respect of family violence and anger management.

   (2)A report directed to the father’s engagement with therapy, focusing on anger management and family violence.

6. Twenty one days following the provision of the report indicating that the father has successfully engaged with the counselling and therapy, the father’s time will be reinstated pursuant to paragraph 1 of orders made 4 August 2017 with the amendment that the father’s time with the children will only require the substantial presence of Mr and Ms C.

7. The parties will have liberty to apply on short notice.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 February 2019.

Associate:

Date: 28 February 2019