KONSTANTIN & ARMENEDIS

[2019] FamCA 233

FAMILY COURT OF AUSTRALIA

KONSTANTIN & ARMENEDIS [2019] FamCA 233

FAMILY LAW – CHILDREN – Where the matter is heard on an undefended basis – Where the father has been living overseas and has not engaged in the proceedings since early 2018 – Where there are reasonable grounds to believe the father has engaged in family violence – Where the mother and the independent children’s lawyer propose orders for the children to live with the mother, that she have sole parental responsibility and that the father be restrained from spending any time with the children – Where the mother is at liberty to change the children’s surname to her married name.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

M & M (1988) 166 CLR 69

APPLICANT: Ms Konstantin

RESPONDENT: Mr Armenedis

INDEPENDENT CHILDREN’S LAWYER: Ms Rayment

FILE NUMBER: BRC 5537 of 2013

DATE DELIVERED: 12 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 12 April 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE APPLICANT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ELR Law

Order

1. All previous parenting orders are discharged.

2. The children, X Armenedis born … 2004 and Y Armenedis born … 2008 (“the children”) live with the mother.

3. The mother have sole parental responsibility for the children.

4. The father is restrained and an injunction hereby issues restraining him from spending any time with the children.

5. The mother is at liberty to change the children’s names from X Armenedis to X Konstantin and from Y Armenedis to Y Konstantin.

6. The independent children’s lawyer is discharged.

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 Konstantin & Armenedis 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 BRISBANE

FILE NUMBER: BRC 5537 of 2013

Ms Konstantin

Applicant

And

Mr Armenedis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Konstantin (“the mother”) and Mr Armenedis (“the father”) are the parents of two boys, X nearly 15 and Y 11. The mother’s application for a parenting order was listed before me yesterday for a case management hearing.

2. At that time I was informed by the independent children’s lawyer (“ICL”) that her attempts to contact the father had been unsuccessful in that his mobile telephone had been disconnected, and registered mail had been returned, and emails had been unanswered.

3. The mother informed the Court that the father was in fact living overseas and had been since about March 2018. She also informed the Court that a PACE alert had been placed at airports by police which, when activated upon his return to Australia, will result in the father’s arrest because of outstanding warrants.

4. The father represents himself in these proceedings and he was advised of the case management hearing by letter sent to his email address on 25 March 2019 and importantly, the letter advised him that final orders may be made in his absence.[1]

   [1] See exhibit 5.

5. Notwithstanding the information provided by the mother and the ICL, the father’s name was called three times in the precinct of the Court yesterday. Not surprisingly, there was no appearance by or on behalf of the father.

6. The ICL and the mother submitted that a final parenting order should be made.

7. Although the matter is proceeding on an undefended basis the Court is nevertheless required to consider whether or not the order proposed by the mother and recommended by the ICL is in the children’s best interests in the circumstances. The matter was adjourned to today so that submissions could be made by the mother and the ICL.

8. Leave was granted to the ICL to issue an urgent subpoena to the Queensland Police Service who co-operated by producing documents confirming that the father was indeed out of the country and that there is a PACE alert that will result in his arrest upon his re-entry into Australia.

Background

1. By way of background I note that the mother and father were married in 1998 and separated in about 2012 on a final basis. They divorced in 2014.

2. In 2013 they consented to an order that the children live with them on a week about basis. This arrangement continued until June 2016 despite the father living in Brisbane and the children attending school in Region B.

3. For a period of about three months in 2016 the older child lived with the father and the younger child lived with the mother and the children did not see the other parent or their sibling. The older child did not attend school for most of that period.

4. In August 2016 an order was made for the week about arrangement to resume and a family report was ordered to be prepared.

5. Further allegations by the mother against the father resulted in the suspension of the week about arrangement by an order in February 2017 and the father has not spent time with or communicated with the children since then. 

6. The mother alleges a long history of family violence perpetrated against her and the children by the father including physical abuse. The allegations are denied by the father (according to the family report) but he has chosen to take no part in these proceedings.

7. The mother remarried in January 2015 and she and her husband have a child together, now aged four.

Material produced by the Queensland Police Service

1. The documents from police confirm that the father has been charged and/or dealt with for breaching protection orders made in favour of the mother.

2. In November 2016 a temporary protection order was made prohibiting the father inter alia from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures or make comments concerning the mother. On 20 December 2016 the respondent posted a comment on a social networking site in the following terms:

   I haven’t seen my children since the beginning of November and won’t be seeing them over the Christmas holidays even though December 2016 they should be with me.

3. In June 2017 the father was dealt with for this breach and no conviction was recorded but it appears the father was required to enter into a recognisance to be of good behaviour with a surety of $1000.

4. Also in June 2017 a final protection order was made in favour of the mother prohibiting the father inter alia from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures or make comments concerning the mother. On 14 February 2018 the father sent an email to the children’s school. The subject of the email named the mother and said:

   My children will need medical care for their mental health later in time and will not be in any position to make any logical changes to decisions regarding their names whilst controlled and coached by the mother.

5. The father was fined $1000 and his recognisance was forfeited as a result of the second breach.

6. In March 2018 the mother and father attended the Suburb E Magistrates Court in relation to a civil matter. At the conclusion of the court proceedings the father yelled at the mother and said:

   You fucking cunt. What an embarrassment cunt.

7. The father was subsequently arrested. It is unclear from the police material whether or not the father has been dealt with for this most recent breach and it may be that the current arrest warrant relates to his failure to appear in relation to this breach.

8. On 17 May 2018 the final protection order was extended to 16 May 2023.

Applicable legal principles

1. In determining what parenting order is proper I must apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered.[2]

   [2]Family Law Act 1975 (Cth) s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

3. The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those subsections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc (s 60CC).

6. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

8. The Court is not required to make findings of fact on every factual dispute raised by the parties.[3] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[4]

   [3]Baghti & Baghtiand Ors [2015] FamCAFC 71.

   [4]M & M (1988) 166 CLR 69.

9. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

10. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).

11. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

12. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

13. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

14. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[5]

    [5]Banks & Banks (2015) FLC 93-637.

Discussion  

1. Given the mother’s evidence and the evidence from the police records of the father’s verbal abuse of the mother in March 2018 there are reasonable grounds to believe that the father has engaged in family violence. Accordingly, the presumption of equal shared parental responsibility does not apply.

2. The children have lived exclusively with the mother since at least February 2017 and have no current relationship with the father, having not seen him since at least that time. The children appear to be well cared for by the mother and her husband. The children continue to attend a private school in Region B where they are excelling. They appear to be part of a loving and stable family unit.

3. The children have attended upon a psychologist, Ms C, since March 2017. Throughout 2017 they attended individual session regularly and in 2018 attended on an as-needed basis. Importantly, the boys have expressed to Ms C feeling safe and secure in their mother’s care.  In Ms C’s opinion:

   …it would be counterproductive and detrimental to the boys’ psychological health and well-being to have any form of contact with the biological father.  As well, their sense of safety and security would be disrupted, destroyed and [X] and [Y] would experience again intense fear, anxiety and depression.

4. Mr D prepared a family report that was filed on 30 January 2017. He noted the allegations and counter allegations made by the parties against each other but opined:

   156. Regardless of whether or not the father has behaved abusively to the mother and to the children, it appears to be clear that [X] and [Y] are anxious, that they have been distressed by the circumstances of the family, and that they are now emphatically rejecting of their father.

5. The mother and her husband solely financially support the children with no assistance from the father.

6. Given this history, it appears to me to be entirely appropriate to make an order that the children live with their mother, that she have sole parental responsibility for them and that the father be restrained from spending any time with the children.

7. The order I propose to make that the mother have sole parental responsibility will include her responsibility to make decisions about any change of name for the children.  However, the ICL has submitted that the Queensland Registry of Births, Deaths and Marriages have in the past declined to change the names of children despite a parent having an order in their favour for sole parental responsibility and the requirement of the Registry is to have a specific order permitting a parent to change the existing name to another name, with the details of the name change to be included in an order. 

8. As it appears that at least X has enquired positively of his school about what would need to be done to change his surname to his mother’s married name, Konstantin, and that of her husband and the boys’ half sibling, the complete rejection by the boys of their father, and the fact that they will spend no time with him, it seems appropriate for the mother to be able to make that decision to change the boys’ names if she chooses. I therefore propose to include in the order a specific provision allowing the mother to do so as proposed by the ICL.

I certify that the preceding forty-five (45) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Carew delivered on 12 April 2019.

Associate: 

Date:  16 April 2019