Karamalis and Karamalis

[2018] FamCA 312

FAMILY COURT OF AUSTRALIA

KARAMALIS & KARAMALIS [2018] FamCA 312

FAMILY LAW – Final parenting orders sought by consent – hearing adjourned to allow child’s views to be sought – United Nations Convention on the Rights of the Child contemplates a child being informed of the progress of proceedings which affect him/her.

APPLICANT: Mr Karamalis

RESPONDENT: Ms Karamalis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1521 of 2017

DATE DELIVERED: 7 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Helen Dellidis

SOLICITOR FOR THE APPLICANT: Counsel Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr C Arnold

SOLICITOR FOR THE RESPONDENT: David Stagg Tonkin & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms P Treyvaud

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1. The updated report of Ms B dated 5 May 2018 be marked Exhibit “ICL1” and remain on the Court file.

2. The proposed minute of consent orders be marked Exhibit “ICL2” and remain on the Court file.

3. The solicitor for the husband provide a clean typed copy of “ICL2” to the Court within 24 hours.

4. I adjourn the parenting proceedings to 2.30 pm on Thursday 10 May 2018 AND IT IS NOTED that if I am not disposed to make final orders in the terms sought I will accord each party a right to be heard on “ICL2” on an adjourned date.

5. By 2.00 pm on Thursday 10 May 2018 or so soon thereafter as possible the independent children’s lawyer distribute the further updated report by Ms B.

6. My reasons for decision in the parenting proceedings this day be placed on the Court file and a copy provided to the parties.

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 Karamalis & Karamalis 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 MELBOURNE

FILE NUMBER: MLC 1521 of 2017

Mr Karamalis

Applicant

And

Ms Karamalis

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me for the final hearing on parenting and financial proceedings. The parties have, with the assistance of counsel, reached agreement on how all matters should be resolved.

2. I have made the financial orders in the terms sought by the husband and the wife.

3. There is a daughter aged 12 and a son aged 10. So that these reasons can be released without delay I will refer to them as the daughter and the son rather than by their given names.

4. I have declined at this stage to make parenting orders in the terms sought by the parents and supported by the independent children’s lawyer because the resolution is contrary to the view consistently maintained by the youngest child, the son aged 11, and no one has informed him of the resolution to which his parents have agreed.  A clean typed copy of the proposed minute of final order will be attached to the original of these reasons and to the copy reasons sent to each party but not uploaded.

5. The parents separated in 2016. The father has a history of psychiatric illness, in particular, schizophrenia and psychosis. He sees a psychologist for therapy on a weekly basis.

6. Post separation the children have engaged in behaviour which is rejecting of the father. The father alleges that the mother has encouraged the children to become alienated from him. The mother alleges that the children’s attitudes are a product of their own experiences of the father including witnessing the father’s mistreatment of her.

7. For some time the children and parents have been receiving family therapy from a private psychologist. She has supervised some time, supervised changeovers and the parents and independent children’s lawyer agree that the family should continue to consult her.

8. There has been an child and parent issues assessment (s11F) followed by a family report (s62G(2)) which was published in March this year. The children were interviewed by the family consultant for the assessment and for the report. On each occasion the son stated that he did not want to spend time with the father without his sister also being present. Of the two children, the daughter is most opposed to communicating or spending face to face time with the father and most recently described the experience as the worst thing that she has to do. The son is described as having some ambivalence about seeing the father. The family consultant opines that the son should be given some opportunity to develop interests and partake in activities with the father.

9. My impression is that the children have been through many assessments and counselling sessions and their views have been sought, documented and discussed with them. As stated, the son’s expressed view is that he does not want to see the father without the company of his sister.

10. The independent children’s lawyer was appointed on 20 March 2017 but has not met either child. The independent children’s lawyer has a duty to communicate the views of each child to the court as well as to facilitate an agreed resolution of issues to the extent that it is consistent with the best interests of the child to do so.  I accept that in cases such as this, where children have been seen on numerus occasions by social scientists, an independent children’s lawyer may be cautious about meeting a child (children). However, there are ways to reduce the onerous nature of any such meeting including the independent children’s lawyer meeting the children in the presence of a family consultant and most conveniently when a family report is being prepared.  Unfortunately, that has not occurred in this case.

11. The core values of the law in relation to parenting are set out in Section 60B of the Family Law Act 1975 which describes how the best interests of the children are to be met. This is uncontroversial.

12. Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child[1] to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws, so that laws and actions affecting children put their best interests first and benefit children in the best possible way. The Convention seeks to ensure that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially. Article 12 provides that children have the right to say what they think should happen when adults are making decisions that affect them and to have their opinions taken into account. Article 13 provides that children have the right to get and to share information, as long as the information is not damaging to them or to others.

    [1] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 44 (entered into force 2 September 1990).

13. In this case, the views of the children have been sought and documented. The children are aware that some of what they have said to the family consultant and their psychologist has been published to their parents. It appears to be common ground that the father has raised with the children some consequences, in particular financial consequences, of them continuing to reject a relationship with him. During assessments and in the course of spending time (and occasionally refusing to spend time) with the father, the children have been accountable for their respective views.

14. Today the parents and the independent children’s lawyer have resolved the parenting dispute with minutes which they seek be made as a final parenting order. The agreement provides for frequent time to be spent between the children and the father. Significantly, and the reason that I make these observations, is that the son is to spend frequent, regular and, in the context of this case, extensive time with the father without his sister. For example, it is agreed that the son will eventually spend time with the father on Saturday and Sunday of each alternate weekend but not overnight.

15. There has been no discussion with either child of the terms to which the parties have agreed. It disturbs me that the children have been encouraged or facilitated to express their views about spending time with the father and that the parents and the independent children’s lawyer would then come to a resolution of which the children have no notice and in respect of which their views are not sought. I accept that the children’s views will not be determinative and in some cases it may be in a child’s best interest to not be informed of the progress (resolution) of legal proceedings which affect him/her. However, it is not put to me that this is such a case. My impression is that it just did not occur to anyone that the children should be informed and, in my view, that is an incongruity in the proceedings which should be addressed.

16. Within our system of family law, determinations are sound in part because there is an obligation for children’s views to be considered. However, the consideration of children’s views imposes certain responsibilities on decision makers and on the professionals including the independent children’s lawyer. Ascertainment of a child’s views cannot be confined to the preparation of the case for trial or the construction of a parent’s argument or contentions to be advanced at a final hearing. It is a two way street. If the children’s views are sought before the final hearing then children should be accorded the respect of having the outcome notified to them in an appropriate manner.  Sometimes, like here, that notification should have occurred prior to me being asked to make an order in agreed terms. It was not submitted before me that telling the son of the resolution to which the parents and the independent children’s lawyer have come is contrary to his best interests or the best interests of his sister.

17. Children should know that such views as they express will be considered and that their perspectives will not be subsumed and lost in the argument between their parents.  Children should be accorded the respect which they will be expected to show to others throughout their lives. This includes taking account of their views and opinions in a dynamic sense, not only when convenient and certainly not to just tick the box next to the numerous additional considerations which we are required to take into account. As Lady Hale said in an international case Re D (A Child):-[2]

    [57] …As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants. […]But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.

    [2]Re D (A Child)(Abduction: Rights of Custody) [2006] UKHL 51.

18. I do not intend that independent children’s lawyers will pass every final resolution by the children whose interests they represent. Care must be exercised to ensure that children are not overly involved in proceedings and/or are caused or permitted to feel responsible for the happiness or disappointment of their parents or the outcome of the court proceedings.  Resolving a case contrary to the consistently held view of a child is another matter.

19. This is a case with particular features. It is a case of extraordinarily high parental conflict. In spite of extensive social science assessment and therapeutic support, neither parent appears to be described as having gained any significant insight into the corrosive impact of parental conflict on the children. My impression from the untested expert evidence is that the children are exhausted by the process within which they are assessed and monitored.

20. The resolution to which the parents have come is expedient. A final order will relieve the parents and incidentally, through them, the children of the emotional and financial pressure of legal proceedings. That is a benefit. A consensual resolution means that the parents escape judicial scrutiny.  That is probably convenient. I cannot tell whether the parents, as between themselves and the children, will take responsibility for the resolution or whether the resolution will be described to the children as an arrangement imposed on the family by the court rather than one formulated by the parents.

21. On the facts of this particular case and largely because part of the parents’ agreement contradicts the clear and consistent view of one of the children, I do not consider that it is appropriate that I make the final order sought without the son being informed of the agreement reached.  I may ultimately make the order even if the son is not particularly happy with the resolution but I don’t want to ride roughshod over what this young man has expressed as a consistent view.

22. I respect the view of the experts that it would not be appropriate for the son to be informed and any discussion had by telephone. He should be seen in person. The parties have arranged for the son to be seen by the private psychologist this Thursday. His sister will not attend because she is away from Melbourne on camp.

23. My final observation is that had the independent children’s lawyer established some rapport with the children before today, the consultation with the son might have been more conveniently executed but I also accept that might have not been the case.

24. The proceedings will be adjourned to Thursday.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 May 2018.

Associate: 

Date:  9 May 2018