FRANGOULIS & XENNON
[2020] FamCAFC 249
•7 October 2020
FAMILY COURT OF AUSTRALIA
| FRANGOULIS & XENNON | [2020] FamCAFC 249 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals against parenting orders in relation to his time with the children – Family violence – Highly conflicted parental relationship – No unacceptable risk – Eldest child refused contact for years – Younger children have ongoing contact with father – Contact disrupted and supervised – Graduated arrangement for younger children to spend time with father – Exercise of discretion – Order sought by father at trial that he be permitted to attend school events not dealt with – Appeal allowed in part – Re-exercise on discrete issue – Order as to school events not made – Other orders made by consent – Appeal otherwise dismissed. |
| Family Law Act 1975 (Cth) Pt VII, ss 60CC, 62B, 65AA, 65DA |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 |
| APPELLANT: | Mr Frangoulis |
| RESPONDENT: | Ms Xennon |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4110 | of | 2015 |
| APPEAL NUMBER: | SOA | 6 | of | 2020 |
| DATE DELIVERED: | 7 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland, Ryan & Tree JJ |
| HEARING DATE: | 19 August 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2019 |
| LOWER COURT MNC: | [2019] FamCA 997 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McQuade |
| SOLICITOR FOR THE APPELLANT: | Harry Alevizos |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | CG Family Law |
| THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The appeal be allowed in part.
The father’s application for an order that the parties be at liberty to attend at the schools of X born in 2009, Y born in 2011 and Z born in 2013 (“the children”) for events that parents are ordinarily entitled to attend, including assemblies, sports days, parent-teacher nights, concerts and the like, be dismissed.
Order 11 of the orders dated 20 December 2019 be varied by adding the words “and to liaise directly with the children’s schools (including their teachers) as to the children’s progress and development. This order does not authorise either party to attend the children’s schools.”
By Consent, it is ordered:
That the parties be at liberty to communicate with and obtain information directly from any medical or allied health practitioner in respect of the children’s physical health and welfare, save that the extent of the information provided to the parties be subject to the ultimate discretion of such professional.
That the mother do all things and sign all documents as may be necessary to forthwith irrevocably authorise and direct the children’s treating medical or other allied health professionals, to communicate with the father regarding issues relating to the said children’s health and wellbeing.
That the mother do all things and sign all documents as may be necessary to forthwith irrevocably authorise and direct the children’s school/s to communicate with the father in order to give practical effect to these orders.
It is noted that:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 6 of 2020
File Number: ADC 4110 of 2015
| Mr Frangoulis |
Appellant
And
| Ms Xennon |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 24 July 2020, Mr Frangoulis (“the father”) appeals certain parenting orders made on 20 December 2019 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the parties’ children.
The father and Ms Xennon (“the mother”) have three children, namely, X, who, at the time of trial was 10 years of age, Y, who was eight years of age and Z, who was then six years of age (“the children”).
The effect of the orders was to confer sole parental responsibility for the children on the mother (Order 2), for the children to live with her and for the two younger children to spend time with the father for increasing amounts of time culminating in each alternate weekend, half school holidays and other special occasions (Orders 5 and 7). The order as to sole parental responsibility requires the mother to communicate with the father in relation to any long term issues.
We note that although Orders 2 and 7 were identified in the Amended Notice of Appeal as being the subject of the appeal, there was no ground asserted, and no written or oral submission was made in relation to these orders. Accordingly, they are undisturbed.
The parties’ eldest daughter has persistently refused to join her siblings and spend time with the father. Her views were given substantial weight and she is to spend time with the father as the parties agree, subject to her wishes. In the event that this child wishes to see the father, the mother is obliged to give effect to the child’s desire (Order 4). Otherwise, there is a suite of orders designed to give effect to the primary orders and to facilitate the provision of important information about the children. Notably, the father is required to attend a psychologist for nine months to assist him with impulse control and related areas (Order 9).
This was a difficult case. The mother sought to terminate the children’s relationship with the father even though she recognised that the children love him and the two younger children want to spend time with him [185]. On the other hand, the father wanted an equal, or at a minimum, significant and substantial time arrangement. He pressed his application notwithstanding that the eldest child had refused to see him since November 2016 and none of the children had spent time with him overnight since the parties separated in 2014.
The parties agreed on very little and the primary judge was presented with an extraordinary array of controversial facts, which the parties said explained their impossibly conflicted relationship and the impasse in relation to the children.
Unfortunately, neither party’s evidence was impressive and the primary judge was rightly critical of their exaggerated and unreliable testimony. However, in relation to family violence, the primary judge had “little difficulty” accepting the mother’s evidence where it was corroborated by her parents [378], [380]. His Honour was satisfied that during their relationship, the father engaged in aggressive and controlling behaviour towards the mother [378] and used aggressive and offensive language to and about her [380]. It was accepted that prior to separation, the father grabbed the mother around the throat and he threatened to assault the maternal grandmother [382]. Furthermore, that the mother is genuinely fearful of the father [389]. Thus, a substantial portion of the trial reasons focussed on the risk of family violence and the risk of the children being exposed to it. Furthermore, to the impact on the mother’s parenting capacity if orders were made which she believed placed the children at risk.
Fortunately, expert evidence was given by the father’s psychologist (Dr F), the mother’s psychologist (Ms J) and, a family consultant (Ms D). Equipped with this evidence and because there had been no family violence in the years following separation, the primary judge was satisfied “that there are risks to the children but the extent of the risk is not such as would justify a finding that there is an unacceptable risk of harm to them” [396].
Evidence given by the family consultant that the father had much to offer the children [395] and that the younger children “enjoy their [supervised] time with him” [407] was accepted. However, there was some uncertainty about how the younger children would respond to a significant increase in time with the father [404]. Taking into account the risk issues already discussed and the father’s lack of insight into his role in the mother’s and the children’s concerns about his behaviour, “a cautious approach” was justified to ensure these children were able to have the benefits from maintaining a relationship with their father [402].
His Honour concluded:
440. As discussed, I propose to make no order that would require X to spend time with or communicate with the father.
441. I propose to [require] that the children spend time with the father for a period of six months under the substantial presence of either Mr or Mrs C with the father’s time to gradually increase subject to an order that the father re-engage with Dr F for not less than six sessions. The focus of the therapeutic intervention will relate to reinforcing the father’s insight into the potential for deleterious impact upon the children of family violence. Dr F has already commenced counselling and therapeutic intervention with the father and a continuation of those sessions is likely to be of benefit to the father and may ameliorate to some extent the mother’s anxiety.
In the main, the mother seeks to uphold the decision. However, she agrees with the contention raised by Ground 4 that the primary judge did not reveal why Orders 10–14 sought by the father were not made. To this extent, the appeal should be allowed and, by consent, orders may be made in accordance with paragraphs 11–14 of the father’s heroically named “Second Further Amended Initiating Application” filed on 28 June 2019. Notwithstanding the mother’s agreement that the order proposed at paragraph 10 of this application is similarly affected, she did not consent to the order. Thus, we will need to address that issue. We also need to address the relationship between Order 11 made by the primary judge, which deals with access to school information and the parties’ agreement to paragraph 11 which deals with the same topic.
Brief overview
So as to provide context to the appeal, it is necessary to refer to some brief background facts. None are controversial, indeed, no challenge is made to the findings of fact or the assessment of risk.
The father was born in 1970 in Country M.
The mother was born in 1971 in Australia.
The parties met in Country M in 1986 when the mother was on a family holiday.
In 2006, the parties commenced living together in Country M. They separated 12 months later and the mother returned to Australia.
The parties rekindled their relationship in June 2007 and resumed living together in Country M, marrying in 2008.
The parties’ daughter X was born in 2009.
In 2011, the parties’ daughter Y was born.
In August 2011, when X was nearly two years of age and Y was three months of age, the mother and children moved to Adelaide, from where the mother hales.
The father joined the mother and children in late March 2012. By then, tensions had developed between the parties and later that year they commenced relationship counselling. Each party accused the other of family violence and the situation in the home continued to deteriorate.
Z was born in 2013.
The parties separated on 23 September 2014 following which the mother took the children to her parents’ home, also in Adelaide. At separation, the children were respectively aged five years, three years and four months and one year.
Later that night, the father went to the mother’s parents’ home and an ugly confrontation between the father and the mother’s father took place. Police were called and the father was charged with offences which were later withdrawn. By agreement, the father entered into an intervention order which lists the mother and the children as protected persons. The intervention order operates subject to “contact” permitted in accordance with an order under the Act [20] and remains in place. The primary judge was satisfied that the intervention order provided a further level of protection and observed that the intervention order had not been breached or challenged by the father [432].
When the parties were unable to agree on arrangements for the children to spend time with the father, in November 2015, the father filed an application in the Federal Circuit Court of Australia for interim and final parenting orders.
Interim orders were made in June 2016 for the children to spend time with the father at a contact centre. The orders provided for a report after six supervised attendances. An Independent Children’s Lawyer (“ICL”) was appointed to represent the children’s interests and the father was required to attend Dr F, as well as to attend anger management and Circle of Security courses. The father complied with these conditions to an extent, but as has been indicated earlier, the primary judge considered that further therapeutic intervention was needed.
On 27 August 2016, the parties divorced.
Supervised time commenced at the contact centre in September 2016.
The family consultant published the first of three family reports, on 12 April 2017.
Thereafter, on 4 August 2017, the interim orders were varied so that the children would spend time with the father for three hours each weekend under supervision by friends specified in the order. By that time, the eldest child had stopped spending time with the father and, at eight years of age, whether or not she spent time with the father was left to her. The mother had little interest in promoting the children’s relationship with the father [414] and it was no surprise that X did not join her siblings with the father [416].
The family consultant’s second report was released on 8 February 2018.
The proceedings were transferred to the Family Court in 2018.
In breach of the orders, in April 2018, the father and the parties’ son went shopping unaccompanied.
The mother filed an application to suspend the children’s time with the father and a contravention of parenting orders application. Time between the children and the father stopped. The father was found to have contravened the interim order and on 27 July 2018, he entered into a good behaviour bond. Further orders were made that required the father to attend Mr B (or another psychologist) in relation to anger management and family violence. After five sessions with the therapist and the provision of a satisfactory report from the therapist, the younger children would resume spending time with the father “in the substantial presence of” the supervisors [11].
Unfortunately, a dispute developed in relation to the orders. The father contended he complied, whereas the mother challenged the therapist’s expertise and said that the father had not attended to the extent required. Nevertheless, in the shadow of numerous applications to vary or enforce the orders, the younger children resumed limited time with the father.
By orders dated 28 February 2019, the father was required to attend Dr F and supervised time for him and the two younger children was to resume, which it did.
The third family report is dated 25 August 2019. The breadth of the factual dispute did not enable the family consultant to make clear recommendations, albeit she suggested a number of possibilities. In the event that the primary judge ordered unsupervised time, the family consultant postulated that one option would be a full day every alternate weekend, with perhaps a three hour period after school in the intervening week. The only other option suggested was to maintain the current arrangement of three hours per weekend. In oral testimony, the family consultant said it was reasonable to contemplate a more substantial arrangement for time. More will be said about this.
The grounds of appeal
Before considering the grounds in detail, it needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
No challenge is made to the statement of the principles by which the decision was reached, and it is to the application of those principles that the appeal is primarily addressed.
The father presented four grounds of appeal which were refined in his Summary of Argument filed 24 July 2020. This distilled the challenges raised against the orders to assertions that the primary judge erred:
·in failing to order the eldest child to spend time with the father at the same time as her siblings (Ground 1);
·by making orders for the younger children’s time with the father that were unnecessarily restrictive (Ground 2);
·in failing to give full effect to the family consultant’s recommendations concerning the younger children’s time with the father (Ground 3); and
·in failing to give reasons for not making the orders mentioned earlier (Ground 4).
In the event that error is established, the father seeks that this Court makes orders for the eldest child to commence regular unsupervised time and, after six periods, all three children spend time with him each alternate weekend from after school on Friday until 5.00 pm Sunday. In addition, that school holiday time be brought forward from 2021 and commence in 2020. Otherwise, the only remaining contentious issue is the father’s proposed Order 4 which would enable him to attend activities at the children’s school that parents usually attend. The mother is content that we address the latter issue, but otherwise says the question of time should be remitted for rehearing.
Arrangements for the eldest child (Ground 1)
The gravamen of this ground is that the primary judge erred in failing to design orders to enable the eldest child to develop a meaningful relationship with the father. By reference to s 60CC(2)(a) of the Act, it was submitted that absent findings of an unacceptable risk to the child, any outcome other than reasonably frequent contact between the father and the child, demonstrated that the provision was misapplied. Once it is appreciated that s 60CC contains a raft of factors which must be considered where relevant, and only one of which, namely s 60CC(2)(b) and not s 60CC(2)(a), is afforded specific weight, it is clear that the submission misstates the law. As this Court said in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption, it would have said so in clear and unambiguous language.
His Honour’s task was to evaluate the evidence concerning the child and, having considered the range of matters in accordance with the dictates of s 60CC, to make an order in the best interests of the child (s 65AA of the Act). That determination must be grounded in the facts and an assessment of their portent for the future (McCall & Clark at 83,476). The decision must grapple with the reality of a child’s position and theoretical possibilities disconnected from a family’s situation are nothing more than distractions.
We have already commented on the years during which this child refused to see the father. Contact broke down even though it was supervised by a contact service and the younger children continued to see the father and generally enjoyed being with him. There is no doubt that the primary judge agreed with the family consultant that all three children would benefit from a relationship with the father, but the conundrum for the family consultant and the primary judge is that they were out of options by which that outcome might be achieved.
His Honour said:
403.The extent of the weight that should attach to the wishes of the children has been carefully considered by the family consultant. In respect of X, the family consultant considered that to put in place orders contrary to X’s wishes would be unworkable. X would be unlikely to spend time with the father and in circumstances where the mother does not instil any confidence that she would promote the relationship, X’s wishes should be given significant weight.
The possibility of reunification therapy was explored with the family consultant who initially opined that this might be worthy of consideration. But the family consultant was also concerned about its limitations, including the mother’s capacity to support the process. Notably, there was no evidence of an available therapist and the family consultant and the primary judge were left to speculate about who and whether, any such person would be available.
In answer to questions posed by counsel for the father, the family consultant said:
[COUNSEL FOR THE FATHER:] So do you support X not having any time with her father?---
[FAMILY CONSULTANT:] Well, unless there’s – his Honour has just given an explanation about reunification counselling and its limitations. We don’t have anything in our system that is anything like reunification counselling post final orders, so that’s not really realistic. So we have no way, really, unless X says she wants to or her mother says it’s a good idea and is willing to support her, actually, realistically, in getting her to begin even to interact with her father, unless his Honour finds that her mother has been so – you know, so untruthful and completely misrepresented the father that there’s merit in starting some process of exposure between X and her father.
[COUNSEL FOR THE FATHER:] So I ask again the question: do you support no time for X?---
[FAMILY CONSULTANT:] Unless somebody has got a better idea of how to do it, probably yes, which is why you see in my last thing I didn’t make any recommendations, because there was this process of the trial to go. And if something – I wanted to stay open to something being put to me that would help me think more clearly about realistically what might happen.
[COUNSEL FOR THE FATHER:] So it is your view that X should spend no time at all with her father on any basis?---
[FAMILY CONSULTANT:] Unless somebody has got a good idea about how to do it so it doesn’t deeply distress her and her mother.
(Transcript 24 September 2019, p.86 lines 6–24)
Furthermore, the family consultant pointed out that she had been unable to persuade the child to meet the father, even though she had seen the child over a lengthy period and had been present as a safeguard for the child.
As it transpired, the only suggestion was the child be forced to attend and cope as best she could.
In the end, four findings drove the outcome in relation to the eldest child, namely:
·there is no relationship between the child and the father [354];
·the child’s “trenchant refusal” to see or speak with the father [362];
·the absence of evidence which would assist the Court to design a process whereby the child could be reunited with the father [370]; and
·evidence from the family consultant that forcing the child to see the father with her siblings was unworkable [368].
For the father, it is submitted that the primary judge should have been more optimistic about the prospect that the eldest child would willingly spend time with him. Speaking of the child, at [412] the primary judge said “her position towards the father is now more consistent with ambivalence rather than fear”. This persuaded the primary judge that the father should be permitted to send gifts and correspondence but plainly, was not persuasive of more extensive contact. Counsel for the father argued that the ambivalence rather than fear finding provided the foundation for the primary judge to be confident that this child’s negative view of the father might be softening. Considered in light of the findings that drove his Honour’s exercise of discretion on the point, the ambivalence finding is too fragile a foundation to be persuasive of the point.
The effect of this is that the primary judge exhaustively traversed the evidence in relation to this child and the available options. Consideration was given to her ambivalence when deciding whether face to face contact might feasibly be re‑established. The primary judge did not overlook the point and there can be no doubt that the poor outcome for this child’s relationship with the father weighed heavily on his Honour. However, it is abundantly clear that following the child’s three years of trenchant refusal to see her father, an order which simply required the mother to force the child to attend, was in reality, no option.
It should be remembered that the same body of evidence in parenting cases may produce opposite but nevertheless reasonable conclusions from different judges (CDJ v VAJ (1998) 197 CLR 172 at 219). We mention this, not because we disagree with the result, but to highlight that the exercise of discretion in parenting cases is quintessentially the role of the primary judge and that absent legal error or a plainly unjust result, the order of the primary judge must stand.
There is none, and error as alleged by Ground 1 is not made out.
The younger children’s time with the father (Grounds 2 and 3)
Grounds 2 and 3 were argued together and challenge the pace at which the children’s time with the father develops. The essence of this challenge is that the primary judge should have accepted evidence given by the family consultant that a more rapid increase in the children’s time with the father than was ordered would be reasonable.
The ICL did not participate in the trial, but provided a Minute of Order in advance of the trial for the Court’s consideration. Counsel for the father questioned the family consultant about the ICL’s proposals and, on the assumption that the primary judge was satisfied the children were not at risk from the father, the family consultant agreed that the gradual increases in the children’s time with him might reasonably occur at three month intervals. As to the short term school holidays, the family consultant agreed that after about nine months of increased time including alternate weekends (in 2020), one option would be to start school holidays on a “half week about” arrangement. In the light of that evidence, the father invited his Honour to consider making orders (in the alternative to his primary position for equal time) in accordance with paragraphs 3 and 4 of the ICL’s proposed orders.
As it transpired, the primary judge took a more cautious approach and the increments were made at six monthly rather than three monthly intervals. There is no doubt that his Honour agreed with the family consultant’s opinion that a cautious approach was appropriate. His Honour was clearly concerned that the father had not been able to accept his conduct was potentially damaging to the children [430] and further therapeutic intervention was warranted. His Honour acknowledged the mother’s concerns for the children [419] and thought it was important to minimise the risks of further litigation [434]. Thus, in maximising the prospect that increased time for the children could be maintained, the primary judge accommodated the mother’s concerns by ordering that the initial periods of time be “substantially supervised” and delayed the introduction of overnight time so that the father could resume therapy with Dr F, informed by his Honour’s findings [424], [441].
We agree with the submission for the mother that the primary judge explained the reasons why the orders were structured as they are. The difference between three and six monthly increments is small and again, quintessentially a matter for his Honour, which, no doubt, was informed by his impressions of the parties. As to the introduction of school holiday periods, this is clearly timed to occur, as the family consultant said was appropriate, once the children were settled into regular overnight time.
Error as alleged has not been established.
The outstanding order (Ground 4)
By paragraph 10 of the application mentioned earlier, the father sought an order “[t]hat the parties be at liberty to attend at the said children[’s] schools for events that parents are ordinarily entitled to attend, including assemblies, sports days, parent‑teacher nights, concerts and the like”.
It is common ground that the primary judge did not give any reasons for not making that order and we understand it is uncontroversial that in this respect, the appeal should be allowed. The parties are weary of litigation and have been in constant disagreement about their children since separation. The stress and cost involved in remitting that issue for rehearing cannot be justified and it is appropriate that the issue is dealt with by us.
Other than to proclaim that an order of this type is commonplace, nothing more was said about why it should be made. We understand that the father wishes to be fully engaged with the children and participate in their lives as fully as possible. The quality of his relationship with the children would logically be enhanced through the opportunity to participate in events of significance to them at school. But these children are sensitised to their parents’ difficult relationship and there is a risk of parental disharmony if both parties are at the same event. The primary judge made findings about the mother’s level of anxiety and the orders for time are a carefully calibrated response to a range of factors, including the mother’s anxiety about the father and the children being with the father. The introduction of activities which potentially involve both parents runs the risk of destabilising those orders. Furthermore, the eldest child’s trenchant refusal to have contact with the father is an added complication and heightens the risk of conflict and or distress at the school if she and the father are present at the same time. As that possibility cannot sensibly be discounted, the balance of factors tips against the order sought.
Turning to the consent orders, the parties agreed that an order could be made in in relation to contact and communication with the children’s schools in accordance with paragraph 11 of the application referred to earlier. Although the agreement is appropriate, the proposed consent order traverses some, but not all, of the ground covered by Order 11 of the trial orders. We think the appropriate and most efficient course is to give effect to the agreement through a variation to Order 11. Proceeding in this manner has the advantage of the parties needing to negotiate only one order on the topic and minimises the risk of further disagreement. Having regard to our concerns about conflict at the children’s school, the order will be expressed to make it clear that the order does not authorise the parties’ attendance at the children’s schools.
Conclusion and Costs
The appeal will be allowed in part and orders made by consent. Otherwise, the appeal will be dismissed.
Neither party sought costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & Tree JJ) delivered on 7 October 2020.
Associate:
Date: 7 October 2020
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