Gregoris and Gregoris - [2010] FMCAfam 653

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREGORIS & GREGORIS

[2010] FMCAfam 653

FAMILY LAW – Parenting issues – assessment of competing applications.

Family Law Act1975, ss.60CA, 60CC

Applicant:

MR GREGORIS

Respondent:

MS GREGORIS

File Number:

ROC 141 of 2008

Judgment of:

Jarrett FM

Hearing dates:

20, 21, 22 May 2009

Date of Last Submission:

22 May 2009

Delivered at:

Rockhampton

Delivered on:

25 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr Polley

Solicitors for the Applicant:

Chris Trevor and Associates

Counsel for the Respondent:

Ms McDiarmid

Solicitors for the Respondent:

Kenny and Partners Solicitors

Counsel for the Independent Children’s Lawyers

Mr Fleetwood

Solicitors for the Independent Children’s Lawyer

Madden Solicitors

ORDERS

That the mother and father have equal shared parental responsibility for the major long term issues of the children, [X] born [in] 1999 and [Y] born [in] 2002.
That unless otherwise agreed between the parents in writing the children live with the parents for an equal period of time on a week about basis from after school or 3.00pm on Friday until before school on the following Friday (or 9.00am during school holidays).
That the children live with:
(a)the father for the first half of the Christmas school holiday period and with the mother for the second half of the Christmas school holiday period in odd numbered years; and
(b)the father for the second half of the Christmas school holiday period and with the mother for the first half of the Christmas school holiday period in even numbered years.
That, unless otherwise agreed, the children spend time with the parent with whom they are not then living between 2.00pm on Christmas Day and 5.00pm on Boxing Day each year.
That should the children be in the father’s care on Mother’s Day, the children shall be returned to the mother’s care by the father by 9.00am on that day and they shall be collected by him at 5.00pm on that day.
That should the children be in the mother’s care on Father’s Day, the children shall be returned to the father’s care by the mother by 9.00am on that day and they shall be collected by her at 5.00pm on that day.
That in the event that the children are not in the care of a particular parent on either of the children’s birthdays, or that parent’s birthday, the children shall spend time with the parent with whom they are not then living:
(a)from 5:00pm until 7:00pm if the relevant day is a week day (i.e. Monday - Friday inclusive); and
(b)if the relevant day is a Saturday or Sunday, from 9:00am until 1:00pm on the relevant day.
That for the purposes of Orders 4 and 7 hereof the parent who is to spend time with the children pursuant to that Order shall collect the children from the other parent’s residence at the commencement of that time and shall deliver them back to that residence at the conclusion of that time.
That unless otherwise agreed between the parties, in the event that a parent is unable to personally provide physical care to the children overnight, that parent shall inform the other who then may provide that personal care for the children in their own residence.
That the children shall communicate with the other parent by telephone at all reasonable times.
That the mother shall be responsible for holding the children’s current passports and any further passports issued to them and for that purpose, within seven (7) days of the date of this order the father cause the passports to be received by the mother or her solicitors.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ROCKHAMPTON

ROC 141 of 2008

MR GREGORIS

Applicant

And

MS GREGORIS

Respondent

REASONS FOR JUDGMENT

Mr Gregoris and Ms Gregoris commenced a relationship in 1998. They married [in] 2005 and they have two children: [X] born [in] 1999 and who is now 9 years of age and [Y] born [in] 2002 and who is now 7 years of age.
Mr and Ms Gregoris’ marital relationship has broken down. They separated on 24 December, 2007. They cannot agree on the parenting arrangements for [X] and [Y]. They have both formed new relationships – Ms Gregoris with Mr N and Mr Gregoris with Ms M.
Following the parties’ separation and before interim orders were made in March, 2008 the arrangements for the children were not settled. They spent some time with Mr Gregoris, but the arrangements were not agreed (or if agreed were not adhered to by the parties). They lived mainly with Ms Gregoris but spent periods of up to a week with

Mr Gregoris on occasion.
Unhappy with that arrangement, Mr Gregoris applied for parenting orders and in March, 2008 interim parenting orders were made for the children to live on a week about basis between the parties. The children have lived equally with each parent since the making of those orders.
The orders that Mr Gregoris asks the Court to make will maintain that arrangement. In summary, he seeks orders for:
a)equal shared parental responsibility for the children;
b)
the children to live on a week about basis between his and

Ms Gregoris’ households;
c)the children to spend half of school holidays with each parent;
d)special arrangements for the children to spend with the parents on special days such as Christmas Day, Fathers’ Day, Mothers’ Day;
e)telephone communication between the children and the parent with whom the children are not living from time to time.
Ms Gregoris seeks that the current arrangements be changed so that the children spend less time with Mr Gregoris. She seeks orders for:
a)sole parental responsibility for the children;
b)the children to live most of the time with her;
c)the children to spend time with Mr Gregoris two afternoons each school week from 3.00pm (after school) until 7.30pm (subject to notice of his intention to do so);
d)the children to spend time with the father every second weekend from 3.00pm (after school) Friday until 9.00am (before school) Monday;
e)the children to spend time with the both parties for half of each school holiday period;
f)special arrangements for special such as Easter Sunday, Christmas Day, Fathers’ Day, Mothers’ Day, the parents birthdays and the children’s birthdays;
g)telephone communication at all reasonable time when the children are in the care of the other party.
She also seeks some orders dealing with other particular issues concerning overseas travel, passports and non-denigration.
The issues in this case centre around Ms Gregoris’ concern that:
a)
Mr Gregoris is a bully. There is certainly sufficient evidence to make that finding. His behaviour, to which I shall later refer, has been in certain respects appalling. Ms Gregoris argues that

Mr Gregoris’ bullying behaviour represents an unacceptable risk of psychological harm to the children and that reducing the children’s time with him will reduce the opportunity for them to be exposed to, and therefore be affected by, that behaviour. Moreover, she argues that that Mr Gregoris’ behaviour demonstrates that he does not have the capacity to properly meet the children’s emotional or psychological needs.
b)The present arrangements do not promote stability for the children. She argues that the “flip-flopping” between households with two separate sets of “rules” does nothing to promote a consistent routine and stability for the children.
Mr N, Ms Gregoris new partner, lives in Rockhampton - a drive of about one and half hours from [G]. A move away from the current parenting arrangements, she argues, will permit her to advance that relationship because she may in the future be able to move to live in Rockhampton. It is neither her nor Mr N’s current intention for her and the children to move away from [G], even if the children are to live most of the time with her.
I am assisted in this case by an independent children’s lawyer and the evidence of a psychologist, Ms S, who prepared a report pursuant to s.62G of the Family Law Act 1975 in this matter.
Having regard to Mr S’s evidence and the concessions of the parties, I am satisfied that these children will both benefit from a meaningful relationship with both of their parents. Neither parent suggested that was not the case and both were accepting of the proposition that it was important for the children to spend significant time with each parent the children. The proposals of each of the parties are consistent with that understanding and either would see the benefits of a meaningful relationship with each parent continue to flow to the children.
Prior to the parties’ separation Ms Gregoris was primarily responsible for the care of the children. Mr Gregoris was the primary income earner and from time to time was required to be absent from the home for work purposes. Nonetheless, Mr S observed that both children have strong, positive relationships with both parents. In that respect Mr S opined in his written report:
“125. It was my impression that both the children have strong and positive attachments with each of their parents, and they also appear to relate well to their parents partners - although they appeared to be more familiar with Mr N, which is unsurprising given his longer presence in their lives.”
Mr S’s opinion stands in contrast to Ms Gregoris own assessment of that relationship. She says that [X]’s relationship with Mr Gregoris is poor and that “…over the years Mr Gregoris has mentally abused the children with put-downs and the like”. Ms Gregoris gave two examples of this behaviour – both of which were accepted by Mr Gregoris in cross-examination. The first was that when [X] told his father that he wished to play soccer with his friends, Mr Gregoris told him that he should play a “man’s game” and that he would play rugby league. The second example is that “If [X] complained or did not want to go [to rugby league I presume] Mr Gregoris would tell him that he would put him in a dress and call him ‘[girls’ name omitted]”.
Mr S was asked to consider those facts and having done so said in his cross-examination:
Counsel for the Wife: I'm not sure if you might've read this evidence in the affidavit material that the mother is concerned about the father using standover tactics, if I can describe them that way, with [X]. For instance, [X] wanting to play soccer because his mates played soccer but his father telling him he had to play a man's game, he had to play Rugby League and that if he was scared of things that he was going to put him in a dress and call him [girls’ name omitted] and the father admitted to those two particular things today. Can you comment on the effects of that sort of conduct by a father towards his nine year old son?
Mr S: -In general terms those sorts of statements might not have much impact on any particular individual child and, again, I draw to some extent a lot is considered to be usual or accepted behaviour in many Australian households and calling your son a poof for playing soccer is probably something that happens across a wide range of households particularly in AFL land. However [X], as we've discussed, is a rather more sensitive child than the norm and I think that he would probably take some of those things to heart and, as I said in my report, possibly then attempt to remould himself in the image which he feels his father expects of him, and if that image was very different to the way his personality operates naturally that would cause him some stress.
Ms Gregoris gave some other examples of behaviour that she said indicated that [X]’ relationship with his father was not optimal. Those examples included [X] painting his fingernails and toe nails, wishing to dye his hair and having his ear pierced. Ms Gregoris conceded that in respect of the last matter at least, Mr Gregoris should have been consulted before a decision was made to let [X] get his ear pierced. Nonetheless the point of her evidence was that Mr Gregoris reacted very badly to the news from [X] that he had his ear pierced. I accept her evidence about that.
In cross-examination Mr S made it clear that the children were more emotionally close to Ms Gregoris than Mr Gregoris.
I accept Mr S’s evidence about the children’s relationships with each parent even though he spent limited time with this family as was pointed out in his cross-examination. The proposals of both parties would permit the children’s relationships with their parents, as identified by Mr S, to continue much as they are now.
It was Mr S’s impression that [X] felt a strong sense of attachment to both his parents although they adopt differing styles of parenting to some extent. [X] expressed a clear preference to continue the current shared living arrangement when interviewed by Mr S.
In cross-examination it was suggested to Mr S that [X]’s wishes might have been influenced by Mr Gregoris behaviour and attitudes towards [X] – that is to say he knew what his father wanted and his wishes reflected that knowledge, not [X]’s own views. The question reflects Ms Gregoris fear that Mr Gregoris treats [X] poorly and [X] has a constant desire to please his father. But Mr S clearly thought that [X]’s expressions of his wishes were genuine. He said:
Counsel for the Wife: And you don't know to what extent that sort of attitude or behaviour by the husband could've influenced [X]’s wishes when he told you that he'd like the present arrangement to continue, do you?
Mr S: My impression was that he was quite genuine at the time. There's a subtle difference between compliance and contentment in a child. Children who are simply compliant and are, in a sense, parroting or going with the prevailing expectation of their parents tend to present and tend to express themselves in rather flat, unaffected, almost distant manner. [X] was quite cheerful, he was quite positive about the idea. I believe he smiled when he - I can almost see him now, and that suggests some degree of emotional connection with the father and some degree of emotional enjoyment of relationship rather than simply falling into line and doing what he's told or being too regimented.
[Y] was too young to be interviewed by Mr S and did not express any wishes.
Mr Gregoris’ proposal is consistent with [X]’s wishes and would accord with them. However, notwithstanding Mr S’s assessment of the genuine nature of [X]’s wishes, his age militates against placing any significant weight upon those wishes. I take them into account.
Since separation Ms Gregoris has facilitated and encouraged the children’s relationship with Mr Gregoris and will continue to do so. I have no concerns about her attitude in that regard. I do not consider that the fact that she is seeking something of a reduction in time between the children and their father as inconsistent with that finding. I am satisfied that she harbours genuine concerns that lead her to seek the orders that she seeks and I have no doubt that she sees those orders as meeting the best interests of the children.
Similarly, I am satisfied that Mr Gregoris has facilitated and encouraged the children’s relationship with Ms Gregoris and will continue to do so. I was not taken to any evidence that suggests that Mr Gregoris has deliberately attempted to undermine the children’s relationship with their mother. There is evidence, referred to below when Mr Gregoris has said some unfortunate things in the presence of the children. Those occasions appear to be relatively few (3 occasions) since separation.
Moreover, Mr S’s evidence of his discussion with [X] reveals that [X] is not taxed with negative comments by Mr Gregoris about

Ms Gregoris. In fact when asked by Mr S about how his father felt about his mother [X] reported: “happy –he says he wants to be friends and she can do whatever she wants because it’s her life”.
I am satisfied that whatever proposal is adopted, both parents will respect the arrangements put in place in this matter, even if those arrangements do not reflect that parties’ proposals. There was no suggestion that the interim orders of March, 2008 have not been adhered to and respected by the parties.
Both parents, I am satisfied, have the ability to meet the physical and intellectual needs of these children. Both parties’ proposals recognise that. Ms Gregoris, however, suggests that she will be more available than Mr Gregoris for the children. She says that because of

Mr Gregoris’ work, her experience of how that impacted upon his availability when they lived together and his ambitions (he wishes to pursue a career in [omitted]) he will not be as available to the children as she will be. She fears that the children will end up being cared for by others – for example Ms M, Mr Gregoris’ current partner. She says that has occurred already and she asserts that on at least three occasions in late January and February, 2008 the children have been cared for by others. Ms M has also cared for them in more recent times after school and on at least one occasion overnight. I accept that evidence.
Ms Gregoris also points out that Mr Gregoris has not been able to collect the children from school “a number of times”, but the only specific occasion was on 23 April, 2008. Ms Gregoris own evidence is that Mr N has cared for the children for her on occasions.
Ms Gregoris argument on this matter seems to assume that if the children are in the care of a parent, that parent must be “physically available” to the children at all times. In my view, that is not so. One of the principles set out in the Family Law Act1975 (s.60B(2)(a)) is to the effect that children have the right to know and be cared for by both their parents. Seen against the next principle (that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents: s.60B(2)(b)) and the general structure of Part VII of the Act which emphasises joint decision making through the presumption of equal shared parental responsibility (s.61DA(1)), it is clear that spending time with parents and being cared for by parents are two separate and not necessarily related concepts. Children can be cared for (or parented) by their parents without spending time with them. “Caring” is a term of broad import and one way a parent might discharge a “caring” responsibility for children is by making decisions about their welfare. Clearly that can happen without a parent spending time with the children.
Parents (even Ms Gregoris in this case I speculate) will have need from time to time to have children cared for by others. Emergent circumstances arise that require attention. The demands of life sometimes dictate that alternate, albeit temporary, arrangements need to be put in place for the physical care of children. And children are entitled, in my view, to experience their parents making and implementing those arrangements for them.
In a situation characterised by parental conflict, such as this case, it is often that parents do not call on each other for support when on any view that is a reasonable course that would best suit the needs of the children. There may be many motivations for that – some good and some not so good.
The concerns raised by Ms Gregoris (that Mr Gregoris will not be available to the children because of his other commitments) are not alleviated by her proposal – he may be away when the children are to be with him according to her proposed orders in any event. Indeed some of the occasions where he has already had the children cared for by others have occurred on weekends.
The optimal way to deal with the concerns raised by Ms Gregoris will be to make an order (irrespective of the primary orders made) that, unless otherwise agreed between the parties, in the event that a parent is unable to personally provide physical care of the children overnight, that parent shall inform the other who then may provide that personal care for the children.

I have some concerns about Mr Gregoris capacity to meet the emotional needs of the children. To explain those concerns it is necessary to record some more of the facts of the matter. I remarked earlier in these reasons that there is sufficient evidence to come to the conclusion that Mr Gregoris is a “bully” as that term is commonly understood. In the present context, labels are unhelpful. The evidence as it appears in the case is the only touchstone.
Before dealing with the specific evidence that is relevant, it is necessary to make some observations about the parties’ evidence generally. Ms Gregoris affidavit is far from as helpful as it could have been. That is so because it is characterised by generalisation, assertion and conclusion. There is, generally speaking, little deposition of the facts upon which the generalisations and conclusions are based.
However, where there was some specificity to Ms Gregoris’ evidence, Mr Gregoris either agreed with her evidence or could not recall the particular matters put to him. His failure to recall important matters did him no credit. Moreover, his credit was seriously damaged when it became apparent that he had not disclosed to Mr S or in his evidence in chief that he had been treated for depression. That was a serious omission on his part and one I conclude that was not accidental.
I am satisfied of the following matters:
a)During the course of the breakdown of the parties’ relationship and prior to separation Mr Gregoris;
i)put a herbicide (“Roundup”) in Ms Gregoris moisturiser cream intending that she would use it;
ii)sprayed her underwear with oven cleaner intending that she would wear them and develop a skin condition as a result;
iii)cut partway through the heels on her dress shoes knowing that she may wear them and it might cause an injury to her.
b)Mr Gregoris told Ms Gregoris soon after separation that he had done these things.
c)There was an argument between the parties on 29 December, 2007 during which Mr Gregoris broke a telephone. The police attended.
d)
In January, 2008 Mr Gregoris approached Mr N who was visiting Ms Gregoris and was sitting in his car with his two children.

Mr Gregoris approached him and I accept he said to Mr N and his children: “I’ll see that you get yours” and “Your dad is an arsehole, watch out”.
e)Ms Gregoris was unable to secure any financial support following separation unless she agreed with Mr Gregoris to have the children share their time equally between them. She filled out Centrelink forms to that effect, but was driven to do so because Mr Gregoris would not otherwise provide financial support, save for the payment of the motel expenses incurred by her when she left the former matrimonial home.
f)Mr Gregoris initially did not permit Ms Gregoris or the children to take anything of any substance when they left the former matrimonial home on separation.
g)
On 14 January, 2008 Mr Gregoris approached Ms Gregoris, Mr N and their respective children in a local park. Although there is some inconsistency between the report of this event in Mr N’s affidavit and Ms Gregoris application for a protection order, I accept that Mr Gregoris threatened harm towards both

Ms Gregoris and Mr N in front of the children. I prefer

Ms Gregoris’ version of this event (recorded in the application for a protection order) because it was given more or less contemporaneously with the events in question.
h)On 21 January, 2008 a temporary protection order was made against Mr Gregoris on Ms Gregoris’ application. That application was subsequently withdrawn when Mr Gregoris commenced his own application against Ms Gregoris and they agreed to each withdraw their respective applications. The applications were both withdrawn in April, 2008.
i)At some indeterminate time in 2008, Mr N’s car was damaged by having something cause a scratch in the paintwork down the side of the vehicle.
j)I accept Mr N’s evidence that two days later when Mr N arrived at work he was confronted by Mr Gregoris in the car park. Mr N asked him what he was doing and Mr Gregoris said: “Checking out where you work. I also have your house address and know where your kids go to school. By the way love your paint job.”.
k)
On 20 September, 2008 Ms Gregoris had organised a birthday party at McDonalds Restaurant for [Y]. Mr N was there.

Mr Gregoris arrived as the party began and said that if Mr N remained he would take the children home and there would be no party. I accept that evidence. Mr N took a very responsible course and left the party.
l)
On 25 October, 2008 Ms Gregoris was working at [omitted].

Mr Gregoris was there [further details omitted]. I accept that

Mr Gregoris was affected by the consumption of alcohol. He approached Ms Gregoris and in a loud voice said words to the effect that Ms Gregoris was a thief and had stolen money. This occurred in front of many patrons attending the [workplace omitted] and Ms Gregoris was humiliated and embarrassed.

Mr Gregoris went away and then returned about two hours later. He said some more unpleasant things to Ms Gregoris in public including calling her “a fat whore”. I accept Ms Gregoris version of these events. Her evidence is corroborated in part by the evidence of Ms L.
m)The episode at [omitted] was precipitated by Ms Gregoris using a tax refund of a little over $2,000 that had found its way into a bank account to which she had access. She assumed she could use the money and had need of it. Mr Gregoris, when he found out, did not agree to her using the money. In cross-examination he sought to justify his behaviour at [omitted] as being provoked by Ms Gregoris conduct. I accept that he was angry about her using the money, but I do not accept that his behaviour towards her was justified. His appalling behaviour on that day was completely unjustified. There is no evidence that he has ever offered Ms Gregoris an apology for his behaviour.
n)
Mr Gregoris was to have the children in his care that same evening, but I accept Ms Gregoris’ evidence that he was too inebriated to do so. Arrangements were made for him to collect the children from her residence the following morning. The next morning Mr Gregoris was taken to Ms Gregoris residence by

Ms M to collect the children. Mr N was in the front yard playing with the Gregoris children and his children. He met Mr Gregoris outside the front fence and there were words exchanged between them. Mr N turned to walk away and heard Mr Gregoris follow him. He turned around and said “Stop”. As he did so he accidentally, I find, brushed Mr Gregoris across the face with a lit cigarette that was in his hand. The men exchanged more words and then Mr N turned to walk away. Mr Gregoris again followed Mr N and, in what can only be described as a cowardly attack, punched Mr N in the back of the neck whilst Mr N was walking away. I find that Mr Gregoris punched Mr N three times to the back of the neck and Mr N fell to the ground. Mr Gregoris continued to punch Mr N three more times before Ms Gregoris intervened and stopped Mr Gregoris from further assaulting

Mr N. The assault took place in front of the Gregoris children and Mr N’s children. I accept that Mr Gregoris then threatened Ms Gregoris by saying “You will get yours”. I expressly reject

Mr Gregoris evidence and explanation of this altercation.
o)On 28 October, 2009 Ms Gregoris took the children to an orthodontist. Whilst she was there Mr Gregoris attended the surgery to say goodbye to the children as he was going away. He was again angry and said to the mother, in the presence of the children and the orthodontist words to the effect; “I have to do it this way as she is a bitch” and “I am so going to get even with you”.
p)Based upon the events of October, 2009 Mr Gregoris consented to a Protection Order in the Gladstone Magistrates Court in February, 2009.
q)Mr Gregoris refused to make any reimbursement to Ms Gregoris for school supples purchased by her for the children at the commencement of the 2009 school year.
On the basis of those matters, I accept Ms Gregoris characterisation of Mr Gregoris as a “bully” as accurate. He clearly has very little compunction about saying and doing things that he thinks will advance his own interests. My assessment is consistent with Mr Gregoris’ own self-description when he said to Mr S: “…I am an alpha male – there’s a lot of high-level negotiations in my work – I deal with people like Kevin Rudd and Wayne Swan” … “I generally get my way with things because I think them through”.
Surprisingly, Mr Gregoris also said to Mr S that he was irritated by “stupidity – people who won’t consider other people’s point of view – rudeness”. Mr Gregoris actions speak louder than his words. He clearly did not consider Ms Gregoris’, Mr N’s, Mr N’s children’s and his own children’s point of view when he engaged in the conduct set out above.
One very concerning aspect of the matter is Mr Gregoris’ evidence that he had Mr N “checked out” through contacts with the Police Service and it was by that means that he was able to find out things about Mr N such as where he lived and where he worked. That is a gross invasion of Mr N’s privacy carried out in a deliberate, and I suspect, illegal, way.
Accepting Mrs Gregoris’ case generally as I do that Mr Gregoris behaviour has been less than desirable, two issues arise, namely:
a)What risk does Mr Gregoris behaviour pose to the children? and
b)What effect, if any, will either of the parties’ proposals have on the likelihood that the risk will deliver consequences for these children?
As to the first issue, Mr S was cross-examined about that and identified the relevant risks:
Counsel for the Wife:     Well, indeed, to use the mother as a comparison, I think she told you that her manner of handling this bullying behaviour was just to shut up and she said that today, that she tended to avoid Mr Gregoris, that she tended to not want to communicate with him, not challenge him and that over time it severely affected her self esteem during the relationship?
Mr S:        Yes, I believe that.
Counsel for the Wife:     That's the sort of effect that it could have on [X], isn't it?
Mr S:        It could. He could cease to express those parts of his identity which he feels would be disapproved of by his father. Under an ongoing difficulty from that scenario is that he begins to separate his personality between the two households and, in a sense, become a different child in each.
…
Counsel for the Wife:     Would you agree with me that in terms of the father's anger management, given what we know in the very brief window we have into this family, if he has a problem controlling his anger, not just with the mother but in the presence of others such as her colleagues and the public at [omitted] or at the orthodontist, that it's likely to manifest at some time with the children as well?
Mr S:        Yes, it is, that's so. It may not manifest in quite the same way but it may manifest in high levels of intolerance, judgmentalism, disapproval, criticism, resentment and I think that's an issue that Mr Gregoris needs to address quite quickly.
Counsel for the Wife:     But he doesn't have a good track record in addressing his issues. Would you agree with that?
Mr S:        I'm not aware of enough of what he's done or what he claims to have done to respond to that very easily, however, I would say that for someone to become involved for whatever reason in an altercation in front of the children some months after they said they have resolved those issues and wouldn't be doing it again, it strikes me as being - I can't think of the word - as you say, it's not a good track record, it's not a good start and I might suggest it perhaps may even be a continuation of a prevailing tendency.
Counsel for the Wife:     Yes. And just looking at paragraph 117 of your report, you're talking about some verbal confrontations between the parents, and this is where you talk about - or it's likely they've had an impact on the children but it's possible a period of calm and predictable conflict with both of them would heal that over. That didn't come to pass?
Mr S:        No, apparently not.
Counsel for the Wife:     No. And would you agree with me that it's not a situation where these confrontations are mutual, that really it's a situation where the father is the aggressor in these confrontations and the mother is continually trying to avoid and deflect his behaviour. Yes, do you consider that the confrontations that you know about were mutual between the mother and the father?
Mr S:        Certainly the latter ones did not appear to be mutual in the sense that Mr Gregoris sought out the mother at her place of employment. I'm not aware of any suggestion that the mother or Mr N confronted him at the orthodontist and there possibly was a degree of confrontation at the birthday pick-up altercation, but it still appeared possible that Mr Gregoris could have walked away or backed off or found a more constructive way of dealing with the situation.
I accept that Mr Gregoris past behaviour has presented risks for these children. In Mr S’s view, however, the behaviour had not affected the children’s relationships with either Ms Gregoris or him. Whilst the behaviour had the potential to do so, Mr S was clear about the nature of the relationship he observed between the children and Mr Gregoris and that they seemingly remained unaffected by both the parental conflict generally and Mr Gregoris behaviour.
The issue of the likelihood of the children, and particularly [X] being affected by Mr Gregoris behaviour if they were the subject of it was not canvassed in the evidence. Mr S was not asked to pass an opinion on that likelihood although he did give evidence that the effects put to him by counsel for the mother may come to pass.
As to the second issue, Mr S pointed out that whilst Mr Gregoris proposal presented more opportunity for the children to be exposed to him and his behaviour that was not particularly relevant because it was the impact of the behaviour that was important. He said:
FEDERAL MAGISTRATE: Yes. Just to follow on from that, Mr S, I think - and the mother's case will be (indistinct) shortly, but I think the mother's case might be that given her experiences with the father and her experiences with his behaviour towards her, she just doesn't want the children exposed to the same behaviour and (indistinct) when she talks about the mother's self esteem through the course of the relationship and how it has improved, but the risks for [X]'s self esteem if he was exposed to the sorts of bullying type behaviour that she complains of of the father, so the two are connected, aren't they?
--- They are, your Honour. I'm not sure that it's so directly connected to the timeframe involved in the sense that if, for instance, this sort of behaviour could occur, it could just as easily occur on weekend as it could during the week.
Sure. The lessening of the time though reduces the opportunity for it to occur?
---But not necessarily the impact, your Honour
…
RE-EXAMINATION
MR FLEETWOOD: In the light of what questions his Honour addressed to you, should his Honour be contemplating perhaps not acceding even to the mother's application and putting in place an order where the children spend even less time in their father's household than what is apparently being contemplated by the mother?
---I don't think so. As I said before - his Honour mentioned before, the increase in time provides greater opportunity to do the, wrong thing if one is inclined to do that, but a reduction of time doesn't necessarily mean there is no opportunity to do those things.
But it may mean a less opportunity to do those things?---A lessened opportunity, yes.

Conclusion

There are a number of obviously troubling aspects about the evidence in this matter. But it is not the task of this Court to punish poor behaviour by parents or reward good behaviour. The task is, and only is, to divine from the evidence the order or orders that are in the best interests of the subject children.
There can be no doubt that Mr Gregoris has behaved appallingly towards Ms Gregoris and her present partner. Equally, some minor criticisms might be made of some of the decisions that Ms Gregoris has made.
I am acutely conscious that it is the task of the Court to decide the issues in this case and that the opinion of a family consultant is but part of the evidence that must be accounted for against the matters set out in s.60CC of the Act. However, when one does that, the conclusion that I am driven to is that these children should continue in the current regime whereby they spend equal time in each household. Their best interests dictate that course because:
a)They have good relationships with both parents and those relationships exist against the background of the current regime;
b)Although Mr Gregoris’ behaviour presents risks for these children, the magnitude of the risk is not affected by either proposal;
c)There is nothing to suggest that Ms Gregoris’ proposal holds any particular benefit for the children (I note that there is no onus on her to establish this so as to convince the Court to move away from the current regime). It seems however that the current benefits enjoyed by the children (for example, their relationships with each parent) have come about in the environment created by the current arrangement.
In re-examination Mr S was asked essentially to re-evaluate his opinion in light of the evidence brought to his attention since his report. His evidence is consistent with the view that I take in this case. He said:
MR FLEETWOOD: I wasn't referring to that. You quite properly addressed his Honour's question there but my question was directed to the lessening of the opportunity for the children to be exposed to this sort of behaviour, weighed up against the children's relationship with their father which you've already talked about?
- - -My impression at the time I did the report was that the children's relationship with the father was quite good and there was no real evidence that they were suffering from his approach at the time.
...
If there is no evidence before the Court if the children are being affected or suffering, do you still stand by the recommendations that you report?
---I would add a qualification that I think the father, and to some extent the mother, do need to take a good hard look at the way they've been behaving, particularly the father in this case.
Now, I'm going to put you really on the spot. If the past is any guide to the future than neither parent will take a good hard look at themselves. Does that affect your opinion?
---Not with regard to the amount of time that the children spend with the parents.
And why is that?
---Because the opportunity exists if the children are spending time with both parents for all of the things which have occurred to reoccur.
So you would still be at, in the light everything you've heard today, that accept - that assume for the moment that it's true, you would still be advocating a week about arrangement?
---Unless there's evidence that the children are suffering from it, yes.
I accept Mr S’s evidence on these matters.

Other Issues

Ms Gregoris seeks an order for sole parental responsibility. In the event that the orders were to be for an equal time arrangement, I did not understand Ms Gregoris to contend that there should be an order for equal shared parental responsibility. If I am wrong about that, I would still make an order for equal shared parental responsibility because even though on the evidence the presumption set out in s.61DA(1) might be rebutted, it is nonetheless appropriate to make the order. It would be unworkable in my view for the children to be spending equal time in each parents’ household but for only one parent to have parental responsibility for them.

In her outline of case document, Ms Gregoris seeks a number of other orders dealing with specific issues. I propose only to make an order for her to hold the children’s passports because it is more likely that she will have need of them for travel given her connections in New Zealand.
In particular I do not intend to make an order that Ms Gregoris be at liberty to spend time with the children to check on their welfare if they suffer any health problem when in Mr Gregoris’ care. To the extent that the proposed order presupposes that Ms Gregoris will be able to call on the children while they are living with their father it has the potential to be disruptive to the children when they are living with the father and the potential to lead to further conflict between the parties. I would of course expect that the parties will communicate about issues concerning the children’s health.
For the foregoing reasons I make the orders set out at the commencement of these reasons.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 28 June 2010