Ganakis & Ganakis (No 2)
[2023] FedCFamC1F 279
•5 April 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ganakis & Ganakis (No 2) [2023] FedCFamC1F 279
File number(s): SYC 7736 of 2020 Judgment of: HARPER J Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – PARENTING – Father seeks interim parenting order for parties to trial a two week about arrangement – Application made orally and without any supporting evidence – Parties agree that a two week about arrangement is consistent with recommendations of the Single Expert Report writer and wishes of the children – Parties both agree to trial the arrangement – Mother resisted the making of an order favouring a notation – No interim order made – Notation made recording parties agreement to trial a two week about arrangement – Application dismissed. Cases cited: Ganakis & Ganakis [2022] FedCFamC1F 262 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 5 April 2023 Place: Sydney Solicitor for the Applicant: Katsikaris Family Lawyers Solicitor for the Respondent: Blanchfield Nicholls Family & Private Advisory ORDERS
SYC 7736 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GANAKIS
Applicant
AND: MR GANAKIS
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
5 APRIL 2023
THE COURT NOTES THAT:
A.There are potentially outstanding issues of spousal maintenance and a proposed child support departure order to be made in favour of the mother.
B.There was agreement by the parties that commencing on 26 April 2023 the children the subject of the proceedings commence spending equal time with the parents on a two week about arrangement.
C.The current residences of the parents are no more than 10 minutes apart.
THE COURT ORDERS THAT:
1.The parties engage in alternative dispute resolution by way of mediation for mediation of all outstanding issues in the proceedings including final parenting orders, spousal maintenance and possible child support departure order, with such mediation to take place by no later than 26 May 2023.
2.The parties take all necessary steps to comply with any reasonable requirements of the mediator, agreed between the parties in accordance with the previous order.
3.The proceedings be stood over to 10.00 am on 2 June 2023 for Mention.
THE COURT FURTHER NOTES THAT:
D.If at the adjourned date the parties have not reached agreement concerning the outstanding issues in the proceedings the Court will give consideration to listing the matter for final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganakis & Ganakis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These proceedings have been in the Court for some time having been commenced in 2020.
Orders were made by Schonell J on 22 April 2022 after an interim defended hearing on 14 April 2022 in which the Respondent Father (“father”) sought a permanent stay; Ganakis & Ganakis [2022] FedCFamC1F 262.
In summary, a permanent stay was ordered in respect of the Applicant Mother’s (“mother”) application for property settlement in this Court because there had been final orders made by the Family Court of Country B on 4 May 2021. His Honour dismissed the balance of the father’s permanent stay application.
The matter was listed before me for directions on 5 April 2023. On that occasion the parties had had the benefit of a Child Impact Assessment by Dr D. The recommendations of that report were clear in the sense that the expert recommended parenting orders or a parenting arrangement whereby the children, the subject of the proceedings, should spend equal blocks of two weeks with each parent, which also accords with the wishes expressed by the children.
The children are currently aged 15 and 14 years; the oldest child, X, will turn 16 in 2023, and the younger child Y will turn 15 in 2023. It is clear from the ages of the children and the common position between the parties that the children’s views should have considerable weight in this matter because of not only their age, but also their level of maturity and their ability to articulate their wishes.
When the matter came before me on 5 April 2023, there was agreement between the parties that a fortnightly equal time arrangement should commence between the parents for the children. However, there was dispute as to whether an interim order should be made to that effect, or whether there should simply be a notation by the Court that the parties had agreed to that approach.
There was also agreement that if the arrangement commenced, it should do so on 26 April 2023.
According to the father, the purpose of an order, as opposed to a notation, would be to make sure that there was sufficient obligation imposed upon the mother to facilitate equal time, rather than leaving it in the realms of a consensual arrangement between the parents.
It is regrettable that the parties were unable to agree to a sensible arrangement based upon Dr D’s recommendations and the views of the children, which they both concede are well known to them. However, there was no agreement about whether there should be a formal order or simply a notation of an agreement.
In circumstances where there is no formal application seeking an order in properly formulated terms, where the application was made orally and is resisted, and where there is no evidence before the Court other than the expert evidence, I have formed the view that it is inappropriate to make an order on an interim basis. Accordingly, I decline the oral application by the father for an order reflecting the agreement of the parties.
I take account of the fact that the mother says there is a risk of contravention applications if such an order is made. I observe here that it presently is unclear why the mother would be concerned about contravention applications if she was capable of ensuring the children complied with any order, but her point is that the ages of the children suggest they may form a view themselves about whether an equal time arrangement involving fortnightly changeovers was something they are comfortable with or not.
On balance, I have determined that it more appropriate at present to make a notation that the parties have agreed to the two week arrangement to commence on 26 April 2023, rather than to potentially create a greater situation of complexity for the children by making a court order.
There was also agreement that the parties be referred to mediation and that the agreement for the two week arrangement should be in the nature of a trial to operate during the period of Term 2 of 2023.
I note that the father is concerned about the amount of time this matter has taken to reach finality and that is something which persuades me that although no order should be made today, the matter should be brought back to Court towards the end of Term 2 for mention. On that occasion, in the event that the parties have been unable to agree at a mediation which I will require to be held before that date, the matter will listed for final hearing.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 5 April 2023. Associate:
Dated: 18 April 2023
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