KONSTANTIN & ARMENEDIS

[2016] FamCA 661

FAMILY COURT OF AUSTRALIA

KONSTANTIN & ARMENEDIS [2016] FamCA 661

FAMILY LAW – CHILDREN – Residence – Relationship with each parent - With whom a child lives – Where one child lives with the mother and the other child lives with the father – Where there is no face to face contact between the children nor the parent with whom they do not live – Where there has been minimal and restricted telephone contact.
FAMILY LAW – CHILDREN – Risk of harm – Findings of fact in interim proceedings – Whether the children are at an unacceptable risk of harm in the father’s care – Where the parties have agreed to attend interviews for the preparation of a family report.
FAMILY LAW – JURISDICTION – Transferred proceedings – Where proceedings transferred to the Federal Circuit Court.

Family Law Act 1975 (Cth) ss 33B, 60CC
Family Law Rules 2004 (Cth) r 11.8

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Konstantin

RESPONDENT: Mr Armenedis

INDEPENDENT CHILDREN’S LAWYER: Ms Rayment

FILE NUMBER: BRC 5537 of 2013

DATE DELIVERED: 8 August 2016 (orally); Settled and provided to the parties on 12 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 5 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch QC

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

COUNSEL FOR THE RESPONDENT: Ms Awyzio

SOLICITOR FOR THE RESPONDENT: DA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rayment

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ELR Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. On Tuesday, 9 August 2016, the father collect the child, B, born … 2008, (“B”) from C School at the conclusion of the school day and B shall live with him until 4.00pm on Sunday 14 August 2016.

2. At 4.00pm on Sunday, 14 August 2016, the mother collect the children, D, born … 2004, and B, born … 2008, (“the children”) from the father at a location agreed between the parents, and failing agreement, from E Street, Suburb F.

3. Both parties do all things necessary to ensure that, by no later than Monday, 15 August 2016, both children resume attending C School.

4. From Monday 15 August 2016 the children shall live with each parent as is provided for by Clause 7 of the Order made by consent on 21 November 2013.

IT IS ORDERED THAT

1. The matter be transferred to the Brisbane Registry of the Federal Circuit Court.

IT IS FURTHER ORDERED THAT

1. The mother meet the costs of the Family Report at first instance and be at liberty to seek at the trial of the matter, to have half of these costs paid to her by the father.

2. The Independent Children’s Lawyer has leave to inspect and photocopy the unredacted documents produced by the Department of Communities, Child Safety and Disability Services on subpoena, and provide a copy of same to Mr G on the proviso that any details identifying the notifier be redacted by the Independent Children's Lawyer prior to their provision.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The parties attend upon Mr G for the preparation of a Family Report on 19 September 2016, or such other date with the children, D, born … 2004 and B born, … 2008 as advised by the Independent Children’s Lawyer.

2. The parties attend and cause the children to attend upon Dr H, Senior Psychologist, H Psychology for counselling to address any matters that Dr H considers relevant as directed by him and to continue to attend as directed, with the parties to pay the costs of their own attendance and to share equally the costs of the children’s attendance.

3. The Independent Children's Lawyer has leave to provide a copy of the Family Report to Dr H.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 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 and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5537 of 2013

Ms Konstantin

Applicant

And

Mr Armenedis

Respondent

REASONS FOR JUDGMENT

1. The mother and father were in a relationship between about May 1998 and June 2012 – thus for a period of about 14 years.  They have two children: D, born in 2004 (now 12 years of age) and B, born in 2008 (now eight years of age).  The mother has remarried and has a child, J, born in 2014 (now two years of age).

2. On 21 November 2013, final parenting orders were made by consent.  These orders provided that the parents have equal shared parental responsibility for the children, that the children live with each parent on a week-about basis and attend C School.  Further orders made included those which dealt with the children’s time with each of their parents on various special occasions such as on Easter, on children’s birthdays and at Christmas time.

3. This parenting regime, which was implemented by the parents despite the fact that the father lives in a southern suburb of Brisbane and the mother lives in I Town, persisted until 8 June 2016. 

4. On that day the father took D into his care and the mother retained B in her care.  That is how things remain at present.  Neither child has seen his brother.  Each child has only spoken to the other on about two occasions.  Neither child has spent any face to face time with the parent with whom that child is not living and their telephone communications have been similarly restricted.

5. B continues to attend at C School.  D has not returned to attend at C School but only very recently has been enrolled by his father in a State high school located in the suburb in which the father and he live. 

6. Whilst the duration of D’s absence from school is not entirely clear (given that the school holidays occurred in June/July) it is enough for current purposes to record that, since he was retained by his father, he has failed to attend school for about one month.  This disruption to his education is, in my view, unacceptable.

7. The primary consideration for any court making parenting orders pursuant to the Family Law Act is to make those orders which, by reference to the considerations in section 60CC of that Act, are in any child’s best interests. That orders are made on an interim basis does not change this.

8. Rather, the manner in which interim applications are heard – for example, often limited to no more than two hours, and in the absence of cross-examination of the parties in particular, but also absent cross-examination of other witnesses upon whom parties rely to provide evidence at this stage of proceedings – often means that the Court is precluded from making decisions about matters in respect of which there is a contest on the evidence.  A classic example of this being cases where, in their sworn recounting of the same event, the evidence of each party is completely at odds with that given by the other.

9. As the Full Court said in Goode & Goode (2006) FLC 93-286 at paragraph 81, in making interim decisions the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of a child.

10. However, it would be an error to think that the mere fact that a hearing is heard on an interim basis is something which prevents the Court from making any findings of fact.  So much is clearly recognised by the Full Court in Goode & Goode from paragraph 81 and paragraph 82, wherein there is outlined the appropriate process a court should adopt in determining interim parenting applications.

11. It seems to me that findings of fact can, in fact, be made in a number of circumstances.  For example: where, after an analysis of the parties’ apparently conflicting assertions, it becomes apparent that the differences are illusory rather than of substance (that is: where the facts then appear agreed or uncontested); or where a party will never be able to adduce evidence contrary to the evidence led by the other party about a particular issue:  for example, no party will ever be able to adduce evidence to contradict what a child said to police as recorded or captured in a recorded interview on a particular day. 

12. All that any party is capable of doing is adducing evidence about issues such as:

    a)what might have resulted in the interview occurring that day;

    b)who was present with the child in the lead up to such an interview;

    c)what pressures, if any, were on a child before the interview;

    d)what were the child’s living arrangements before the interview;

    e)what was the nature of the child’s relationship with the person or persons about whom that child spoke during an interview.

13. These are, of course, only examples of matters which themselves may easily be – and often are – themselves the subject of conflicting evidence adduced by parties: and, if so, are matters incapable of resolution on an interim basis for the simple reason that, in attempting to ascertain which of the competing accounts is more likely than not, the court is deprived of the assistance which may arise from the opportunity of observing the parties’ cross-examination.

14. In this case I have the benefit of the following evidence:

    a)the mother’s affidavits in which she sets out her observations of matters relevant to an assessment of whether the father is a risk to the children; and

    b)her necessarily hearsay accounts of the children’s comments to her;  and

    c)the father’s affidavit in which he sets out his admitted behaviours and his denials of any inappropriate or sexually abusive behaviours of the children; and

    d)the information provided by the children to police when spoken to on 7 July 2016 (in the case of B) and on 4 August 2016 (in the case of D); and

    e)the content of documents obtained via subpoena issued by the Court at the parties’ request, including documents from Dr H, a psychologist, upon whom the mother arranged for the children to attend; and

    f)a photocopy of a photo produced by the mother in answering the call by the father to produce photos to which she was referring in describing images on his mobile phone to Dr H during an appointment on 1 June 2016.

15. It is, I think, helpful at this stage simply to summarise the contents of the reports and notes provided by Dr H. 

16. The first appointment the children and mother had with him occurred on 29 April 2016.  It is an accepted fact in the proceedings that this appointment and the children’s engagement with Dr H was something that was unilaterally arranged by the mother and was something in respect of which the father had no knowledge – at the time of the appointments at least. 

17. It appears from Dr H’s notes of the 29 April 2016 appointment (which are contained within exhibit 2 before me) that the mother presented to him explaining her concerns about what she asserted was poor parenting of the children by the father; her assessment that his home was not a good environment for the children; her view that she was not happy with the care arrangements and was concerned about the fact that the father utilised young au pairs to assist him in the care of the children –her concerns, it seems, included worries about whether such persons had the necessary experience and expertise to care for the children and also whether they were capable of driving them safely on the roads as they travelled between their father’s home in Brisbane and C School.

18. She was certainly worried (it seems from Dr H’s notes) about the amount of time the children spent travelling to and from school whilst in the father’s care.

19. She expressed to Dr H on that occasion her view that she felt that agreeing to the 50/50 child custody arrangements was a mistake.  This, of course, can only be a reference to the November 2013 final consent order.

20. It appears from Dr H’s notes that when he engaged with D on that occasion, he thought he engaged well.  Dr H did not identify any immediate risk but, in a way that I think is telling, records that D felt stuck in the middle of the conflict between his biological parents, was not sure who was telling the truth, and was not sure who to believe.

21. Dr H’s notes include that there was “a very poor relationship” reported between the parents.  D, whilst reporting some bullying at school (which had it seems, at least in some way perhaps, contributed to some fall off in his grades) reported that he enjoyed staying with his father and didn’t have any concerns with that. He reported good relationships with his mother and step-father. 

22. As I noted to the legal representatives during the course of the hearing last week, it appears that he has been able, to this point at least, to maintain those good reported relationships with all three adults in his life despite his parents’ inability to manage their co-parenting relationship in a way that protects him from feeling stuck in the middle of their conflict.

23. I note that Dr H’s working hypothesis at the end of the session with D on that occasion was to this effect: that the problems predominantly involved family relationships; the main problems will be unresolved until conflict between the parents is able to be addressed or managed in such a way as to reduce its impact on the children. 

24. He suggested working with both parents to address the issue.  It is of some minor comfort to the court that, having had the opportunity (no doubt) to be informed of the contents of Dr H’s notes and reports and recommendations, the parties are agreed that they will, in fact, engage with him in a process which one hopes will assist them to work out how they can ensure that their children do not feel stuck in the middle of conflict between both of them.

25. Returning to Dr H’s working hypothesis though, it appears that he also included that, whilst D might benefit from some individual sessions, this was only appropriate if it was something that D himself wanted to do.  He noted, I think importantly, that the concern about engaging D alone in treatment was the risk of putting treatment attention on him and taking attention away from what he identified as the real issue: namely, the parenting challenges (to use his phrase).

26. Dr H’s notes (in relation to his engagement with B on 29 April 2016) record that he thought B engaged quite well but was a bit shy.  He reported him clinging to his mother and seeking her reassurance about what he was saying.  The last comment is, at least, suggestive of the fact that B and the mother spoke – at least for part of B’s engagement with Dr H – together to Dr H at the time. 

27. That tentative conclusion finds further support in another aspect of Dr H’s notes: namely, his report that B and the mother reported that B did not like staying with his father. 

28. It is clear from Dr H’s notes that B reported a good relationship with his mother and step-father and that he would rather stay with them full-time.

29. Whilst it is difficult to know when Dr H obtained the following information from the mother, it appears this occurred at least at some time during the session on 29 April – although, as I have said, it is impossible to know whether it occurred in a single session before B was spoken to, or during a joint session, or in a single session between Dr H and the mother after B was spoken to.  In any event, perhaps in a manner consistent with the concerns the mother had expressed to Dr H (as I have already outlined them) his notes also record her view that she felt that B would be better off with her full-time; that the father was a bad influence, didn’t look after the children properly and was reported to speak of her in a derogatory manner in front of the children: for example, using the term “evil witch.”

30. Any comments made by any parent in front of any children which are suggestive of or derogatory about the other parent can do nothing but harm to that child.  It is a shame that parents find such a concept so difficult to appreciate.

31. In any event, insofar as B is concerned, Dr H’s working hypothesis was that, for him, his problems predominantly were with his relationship with his father.  Dr H thought that these problems or issues were possibly being exacerbated by his mother having very negative feelings toward his father which, in Dr H’s view, may be reinforcing his dislike for his father.  Again – as he had already said in relation to the issues about D – Dr H thought it was unlikely such problems would be resolved until the conflict between the parents was resolved. 

32. It appears that, looking at matters from a chronological perspective, there was some disagreement between the parents about and in relation to the signing of passports which would have enabled the children to travel with their mother to Europe for holidays during the June/July school holidays. 

33. Then, on the weekend of 28 May of this year (on the mother’s case) she became aware that the children have been exposed to explicit images, text and video.  This, it seems, occurs after B took the phone that had been in his father’s possession for some time from his father’s home and gave it to his mother. 

34. The mother’s case is that the children had told her they had played on the phone.  When she accessed the phone, she says she saw explicit content on it and assumed that the boys had seen it.  She provided police with a copy of some of the images.  She contacted the Child Protection Agency and, from there, the Department of Child Safety (using a shortened form to refer to it) was contacted and commenced investigations.  It is in that context, then, that the mother and children attend upon Dr H on 1 June 2016.

35. It is clear from reference to Dr H’s notes that, on that occasion, the mother told him she was concerned the father was a paedophile.  This seems to have arisen from her report that he had pictures on his phone of very young girls.  Dr H’s notes also contain the mother’s report that the phone contained images of the children in “very little clothing”, posing for photographs and looking uncomfortable. 

36. A perusal of the contents of Dr H’s notes of the interactions between himself and the mother on that occasion supports the conclusion that he advised her to take the phone to the police.  She told him she planned to do that after the appointment and she conveyed to him that she had been told by Departmental officers that she should have the children attend upon him and ask him to write things down.

37. It is also clear from Dr H’s notes that he provided the mother with information about his role in the engagement with herself and the children at that stage.  There is nothing in my perusal of his notes to suggest that he approached the matter in anything but a highly professional and appropriate manner.

38. It is clear there was some discussion between the mother and Dr H in relation to the children and what should happen to them if she felt they were in danger.  It is also clear that, in outlining her concerns about the father potentially being a paedophile because of the fact of images on his phone, she provided to Dr H an example of a photo of a girl who looked about 13 in very short shorts standing next to a goat (to summarise Dr H’s notes).  She also described there being pictures of girls bending over and text messages negotiating rates in relation to the engagement of prostitutes. 

39. The last page of exhibit 2 is a photograph of a young woman holding an animal which is said to be a deer of some sort.  This, it seems, is the photo provided by the mother in answer to a call made on behalf of the father for the production of the image to which she was referring in her discussions with Dr H.

1. It is also, I think, relevant to record that, in the discussions between the mother and Dr H on 1 June 2016, the mother reported that, during the relationship between herself and the father, the father used a lot of pornography.  She reported that this pornography did not involve children and that, at that time, she did not have any suspicions he was potentially sexually excited by children.

2. Dr H’s notes also contain a further litany of the mother’s complaints about the father’s capacity to care for the children. 

3. When Dr H spoke with D on this occasion, the child engaged well and appeared happy to attend upon him and speak with him.  There was some discussion about D’s asserted wish to go to boarding school and his clear knowledge that his mother supported such a decision and his father did not support such a decision.

4. Again, it seems, not much had changed in terms of his feelings of being stuck in the middle of a conflict between his parents. 

5. It is relevant, I think, also to note that, on this occasion, D told Dr H that his brother, B, had a close relationship with his mother and was much quieter when they stayed with the father.  He was unsure why this was and said to Dr H that his father didn’t do anything to him (a reference I take to B) but was just normal around him. 

6. D outlined to Dr H that B had always been more for his mother (by which I take him to have meant “had a closer relationship with” his mother), that he used to be more for his father (which I take to be his recounting of having a closer relationship with his father) but it was now more equal for him (which I take to be him saying clearly that, at that time, his relationship with each of his parents – perhaps consistent with what he had earlier told Dr H on 29 April – was a relationship which was, from his perspective, one of an equal degree of care and/or attachment).  He made some comments that suggested, from his perspective, his younger brother was more favoured at his mother’s house.

7. It is, I think, relevant also – because the mother’s concerns about the children’s care whilst in their father’s care include that they may be at risk of suffering some form of physical abuse from him – to note that, when Dr H raised with the mother on 1 June of this year D’s concerns about being placed in a position of having to tell his father he wanted to go to boarding school (in the context of a conversation in which she told Dr H she had received some advice from the Department which was to the effect that D should stand up for what he wanted – by which I take it to mean that he should be put into the position of having to tell each of his parents what he wanted).  Dr H’s notes record that, when he asked her if she thought that standing up to his father would place D at risk (given her account that he, the father, had reportedly hit B on the legs on multiple occasions) the mother is recorded as saying that she didn’t feel that this was a risk.  Rather it seems, from Dr H’s perspective, D’s concern was that it would make him feel uncomfortable to have to deal with this issue with his father personally.

8. It appears that, when B spoke with Dr H on that occasion, he said he wanted to stay with his mother and didn’t want to go back to his father.  He didn’t like it with his father.  His father was mean.  He also said his father had slapped him across the leg, pointed to an area around the lower part of his calf and said this has happened once.  Dr H didn’t note any visible marks.  B reported that his father had told him to call his mother a witch and a snake and that he had called him (B) a blob. 

9. It appears from Dr H’s notes that, at the end of the session, the mother asked Dr H whether B had told him about the father hitting him.  She reported that B had told her that the father had hit him multiple times on the upper leg – which she described as being in a place where you couldn’t see the bruises.  When Dr H told the mother that B had reported being slapped across the lower leg on a different spot and that this happened once, the mother is recorded as saying that that was because he was young and was not reporting it properly.

10. It is, I think, relevant in assessing the weight to be placed on B’s comments about not wanting to go back to his father’s place to appreciate that this appointment on 1 June was very shortly after the occasion (namely, 28 May) when, on any assessment of the evidence, B had taken his father’s possession – a phone – from his father’s home and conveyed it to his mother; it seems to me to be highly likely that he would hold some concerns about how his father might deal with him once his father became aware of his actions.

11. The mother’s recounting in her affidavit filed on 10 June 2016 about Dr H’s information to her is, to some extent, corroborated by his notes and to some extent not. 

12. It is clear from her evidence that she took from their discussion the idea that she needed immediately to change the children’s living arrangements.  It is impossible to know whether this was a matter of interpretation or not.  It is simply only possible at this stage to record that there is nothing, it seems to me, in Dr H’s notes that points to him advising the mother to act in such a way – or, at least, advising her directly in a direct manner to act in such a way.

13. And it is also relevant, I think, to note that, later, he informed the mother (I think on about 8 June) that he did not intend to notify the Department because he did not think he was the recipient of any information that would cause him to act to discharge the obligations imposed upon persons who are likely to fall within the category of mandatory reporters to the Department. 

14. This is, at least, some of the context which pre‑dated the events of 8 June 2016.

15. The primary question is whether, on the evidence before me – which includes the aspects to which I have already referred and the contents of the children's respective interviews with the police (about which I will say more in a moment) – I should conclude that the orders which are in the children's best interests are those proposed by either of the parents, or those proposed by the relatively recently appointed Independent Children's Lawyer, or some other amalgam of the same.

16. It is also relevant to record that the determination of the interim parenting orders to be made today is to be made in the context where the parties are agreed that:  they will attend upon Mr G for the preparation of a family report and that those interviews will occur in September – with a likely report release date about a week after that;  that the children will continue to attend upon Dr H; and that, once the family report prepared by Mr G is made available, it be provided to Dr H to assist him, no doubt, in the ongoing support that he can provide to the children.

17. Whilst on the day the matter first came before me, the parties were also agreed that both children should continue to attend at C School, this agreement evaporated after the recordings of the children's respective interviews with police were played in Court.  The position of the father and the Independent Children's Lawyer, after seeing those interviews, became that, until the family report was prepared, D should continue to attend at I School, and B should continue to attend at C School.  The mother's position remained as it had been; namely, that both boys should continue to attend at C School, the school at which it was agreed by their parents they attend at the time the November 2013 consent order was made, and the school at which they had both attended until 8 June 2016 and, of course, it being the school at which B continues to attend.

18. As I have already noted, the manner in which the Court should approach the determination of interim parenting applications such as this has been authoritatively stated by the Full Court of this Court in Goode; it is also helpful to have reference to a more recent decision of the Full Court in Banks & Banks for further elucidations of the requirement to express consideration of relevant matters.

19. The mother's proposal for interim orders is that the children return to live together;  that they live together with her, her husband and their young daughter – the children's half sibling; that they attend at C School; and spend time with their father on three occasions per week in a public place – namely:

    a)between 9 am and noon each Saturday at the K Park; and

    b)between 4 pm and 6 pm each Wednesday at the K Park; and

    c)during the time the children are at sport, which is between 4.30 and 5.30 pm each Friday, on the proviso that the father not approach her at that venue – albeit that it seems to me that, given that the children will clearly be engaged, I assume, in a lesson or playing with other peers during this period, any real opportunity for them to interact with their father in any sort of meaningful way on that occasion is likely to be obviously limited by their engagement in that activity.

20. It is said on the mother's behalf that orders in such terms would achieve the balance of enabling the children to maintain a meaningful relationship with their father, whilst guarding them against the risks he is said to pose to them.

21. Those risks arise out of the contents of B’s interview with police on 7 July 2016 and the contents of the mother's affidavits in which she raises other alleged deficiencies in the father's parenting and care of the children.

22. When the matter first came before me, the father's position was that the mother's application be dismissed;  in essence, that the parties return to abiding the terms of the existing final order made by consent in November 2013. 

23. However, having seen the interviews of the children by police, his primary position changed.  He then proposed that orders which best addressed the children's best interests on an interim basis, until the family report is completed, would be orders which would put into effect a maintenance of the current position; that is, that the boys remain separated from each other and remain attending different schools.  He also proposed that the children spend time with each other every weekend in the following manner: 

    a)on weekend 1: he collect B from school on Friday afternoon and return him to school at C School on Monday morning;  and

    b)on weekend 2: the mother collect D from school at I School on Friday afternoon and return him to school at I School on Monday morning. 

24. It was also submitted that the children's best interests would be met by making an order which restrained each of their parents from attending at the children's school at any time they are in the other parent's care.  His alternative position, I think, if that primary position did not find favour, was that which had first been advocated on his behalf.

25. The Independent Children's Lawyer submitted that, until the family report process was completed, the children should remain where they are currently living and spend time on weekends with each other and the parent with whom that child is not living during the week.  Her submissions, I think, focused on attempting to protect the children from any further changes pending the completion of the family report process and in seeking to minimise the disruption to the children if changes to their current care arrangements are, in fact, recommended by Mr G after the opportunity to interview all of the relevant participants and the children themselves.

26. It was, I think, very much on this basis that the Independent Children's Lawyer submitted that, save for enabling the children to spend time with each other and the parent with whom they are not then living, the Court should do nothing until the family report process is complete. 

27. The obvious difficulty inherent in the “do nothing now” approach is that the changes to the previous longstanding parenting regime previously implemented by the parents since no later than the time the consent order was made in November 2013, will effectively be cemented further in the time that passes between now, the preparation of the family report and the return of the matter to court:  that is, each parent will have effectively been able, unilaterally, to change aspects of a previously agreed parenting regime, despite the existence of a previously agreed consent order in final terms, included within which is the obligation cast on both of them by the existence of an order according to them equal shared parental responsibility for the major long‑term issues relating to the children.

28. This aspect covers, in this particular case, not only matters relating to the children's education, but any changes to their living arrangements that make it significantly more difficult for them to spend equal time with each parent. 

29. Additionally, it seems to me, given B’s comments to police during his 7 July 2016 interview, that a continuation of an arrangement in which he spends minimal time with his father (whilst D continues to live primarily with his father) may well foster or provide further support for his feelings of being excluded and a little left out. 

30. A continuation of the boys' separation from each other for significant aspects of their life and for significant time during each week – which he appears, from his comments to police, to think that the Court has ordered (which, of course, is not the case) – is, it seems to me, unlikely to assist B in dealing with how he says he is feeling; namely, a little excluded.

31. In saying this, it is clearly not the case that the fact of a previously longstanding parenting arrangement is determinative of the issues of those orders which are in children's best interests at any given point in time.  However, the fact that parents have implemented such arrangements over time is clearly relevant on a number of levels and in considering a number of the section 60CC considerations, such as those found in subparagraphs (c), (d), (f) and (i) respectively.

32. The parties clearly recognised the benefit to their children of the maintenance of a meaningful relationship with both parents when they agreed the orders in terms of the November 2013 consent order.

33. Given that the mother's proposal to limit the children's time with the father rests on the assertion that permitting them to continue to live with him on an alternate week basis would expose them to an unacceptable risk of harm and given the statutory imperative of making orders which guard against this risk, the primary focus, it seems to me, needs to be upon the evidence relied upon to found such assertions. 

34. The mother initiated proceedings by filing an Application on 10 June 2016.  She also filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on that day.  This document contains the following particulars of matters relied upon as providing the basis for its filing:

    a)the children had made disclosures to her that the father had failed to supervise them adequately, and both had been injured; and

    b)B said the father hit him repeatedly, the most recent being in May 2016, when he had been hit on the bottom for wanting to call the mother; and

    c)that, on 12 May 2016, the mother saw the children being driven by an unlicensed driver, which resulted in her contacting police to report this; and

    d)that, on the weekend including Sunday 28 May, the mother became aware they (the children) had been exposed to images of an explicit nature, text and videos, which had been reported as I've said, to the Department of Communities, Child Safety and Disability Services and the police; and

    e)that the children had disclosed to her they were not cared for properly by their father – in summary, this included assertions that they were not given sufficient food; were not supervised adequately or appropriately;  that their attendance at school was poorer in the week they were living with him than in the week they were living with their mother;  and that they had been exposed to him calling her and their half‑sister derogatory names like bitch, slut, fucking liar, bastard child.

35. In addition, the mother relied on her evidence about a number of matters of a more historical nature:  for example, that in December 2014, B told her he had been "bashed" by a cousin whilst in the father's care – this child is said to be a 15 year old with some behavioural problems; that, in July 2015, D told her the father had told him to sit on an old metal chair which later broke and resulted in him suffering injury. 

36. Neither of these latter two incidents, even if they occurred in the manner outlined by the mother (about which the father disagrees or provides evidence to place them in a different context) in my view would provide sufficient foundation for an immediate change to the parenting arrangement.  After all, the mother did nothing herself to return the matter to court at any time proximate to her becoming aware of these events, and the children continued to spend alternate week time with their father after each of them.

37. Similarly, given B’s comments to the police officer about his living and care arrangements when with his father, I am not persuaded on a prima facie basis that he or D would be likely to be at risk of suffering physical harm through neglect if they continue to spend more expansive time with their father than their mother now proposes. 

38. Because of the likely damaging impact on the children of hearing one parent speak negatively about the other, as I have already said, it is completely unacceptable that any child is exposed to comments made by one parent that are denigratory of the other parent, or any member of that parent's household, including any half siblings.

39. In this case, the mother says that the children have told her of the father's denigration of her and their half‑sister.  As I understand it, the father denies making such comments in the children's presence. 

40. Whilst the existence of such a conflict in the evidence may, in another case, have meant that no finding at all could have been made about the likelihood or otherwise of such behaviours, the contents of Dr H's notes provide, I think, clear support for a finding that the behaviour of both of these parents has been such as to place their children squarely in the midst of their parental conflict. 

41. One needs only, as I have already said, to have regard to Dr H's working hypothesis after his first session with D on 28 April 2016, where he identified the problems as predominantly involving family relationships, the conflict between parents and its impact upon these children.  Further, the comments made by both B and D to police seem to me to be highly suggestive of a conclusion that both parents have failed to restrain themselves from making their highly critical views of the other – and, I suspect, the other's approach to parenting the children – known to each of their sons. 

42. On a prima facie basis, I think it is much more likely than not that each parent has been only too willing to permit the children to know about the poor relationship which exists between them.  For example, B in his interview clearly speaks about the father's impecuniosity, about him not being able to do anything, about him being reliant upon the support of his father, living in his father's house and using his father's car.  He is clearly aware, all too clearly, of a financial imbalance between each of his parents' households.

43. Whilst about a different topic, D, in his interview with police, seems to me to use the same phraseology in describing why, from his view, B is "loving it", living primarily with his mother.  He uses the same term "brainwashed" as the father did in his email exchange and criticism of Dr H, as conveyed to Dr H in those emails which are before me.

44. I turn now to my consideration of the contents of the interviews by police and what it is that, it seems to me, can be drawn from the interviews of each of the children respectively. 

1. I do so by reference to those matters identified by the mother as providing the basis upon which it is sought that the Court act cautiously on an interim basis and conclude, on an interim basis, that if the children were to spend more time than she proposes in her current proposal, they would be at an unacceptable risk of harm during such time with their father. 

2. The mother says that the children have told her the father walks around the house naked, which she says they say has made them feel uncomfortable.  The father denies walking around the house naked, but says he sometimes walks around his bathroom naked, and sometimes the children come into the bathroom when that's occurring.

3. B told the police on 7 July, in the context of raising that his father was being naughty and annoying, that his father got a new girlfriend every second week, was always taking pictures of girls, taking pictures of their rude parts, taking pictures of his brother's rude parts, and was always walking around naked and telling lies.  There seemed to me to be nothing in D’s interview with police about this issue, but I do not think it could be said that that particular topic was raised squarely with him. 

4. In any event, being seen naked by one's own children does not, it seems to me, persuade of a conclusion that the children in the household are at risk of being sexually abused by that parent.

5. The fact, however, that the mother says the children have raised the issue, and the fact that B has mentioned the issue to police should make it clear to the father that, if he had not appreciated before that the children are now, it seems, clearly of an age where, from their perspective, they are finding any opportunity during which they see a parent – in this case, him – naked, embarrassing and distressing to them.  He should take that, it seems to me, into account in making his decisions in his household.

6. Another issue the mother raises in her material is that the children had reported to her that, until 2015, they were sharing a bed with their father when staying with him.  The father's evidence is that he accepted that the children sometimes slept in the same bed as him.  They have their own beds; he encourages them to sleep there; but, after he has fallen asleep, sometimes they come into his bed and he does not realise they are there until he wakes in the morning.  He says he doesn't allow the children to sleep in his bed when his girlfriend is present. 

7. It is, I think, relevant to note that, during his interview with police on 7 July, B did not make any mention of this particular issue – given the mother's evidence that it ceased to happen after 2015 at some point, that is, perhaps, not surprising.

8. The mother raises an issue that the children in late 2015 reported that the father had asked them to lock themselves in a bedroom and not come out because he had a female coming over and he did not want her to know he had children.  The father denies this event.  Again, this is not an issue raised by B when speaking with the police officer and telling her everything about his father being naughty (to use the phraseology of that interview).

9. The issue of the mobile phone is one which is squarely in dispute as between the parents.  In broad summary, the father's response to the mother's assertions about it is to accept that he had matters of an adult nature on the phone, but to reject the contention that the children had been exposed to that information or those images whilst in his care.  His evidence is that the phone is locked and the children were not able to access it.  He, in fact, asserts that the only way the children could have seen images and content on his phone is as a consequence of the mother exposing them to that because, on his case, the code used to open the phone is a code that was known to her.

10. The issue of the phone and the father's asserted behaviour in taking photographs of his girlfriend is something that was discussed by B during the course of his police interview.  When the topic of taking pictures of the father's girlfriend was spoken of, it appeared to me (having had the opportunity to watch again the interviews of both children over the weekend) that what B told the police was, in essence, that he first recounted he saw it once:  he was playing with the father's phone, looking through some photos trying to find a photo he had taken, which he wanted to copy and paste and use to make an online game.  He was asked a question to this effect:

    So you didn't actually see [Mr Armenedis] take photos of his girlfriend?

11. His answer was to this effect:

    No, but mum and I did.

12. When he was asked further questions following that up, it became, I think, apparent that he had not seen his father take photos of his father's girlfriend, but, rather, had seen whatever photos had been taken on the father's phone later.  I think relevantly he made the following comments which seem to me to relate to the phone he had returned to his mother on the weekend of 28 May.  He told the police officer that his mother had her old phone and his father had stolen it.  That is certainly a comment consistent with the mother's case about how the phone, to which these comments relate, was retained by the father and remained in his possession. 

13. B said:

    And there's lots.  And we looked through it last night because I wanted to see it.  There's all the photos of different girls he dated, and naked pictures of them, and pictures of girls.

14. He was asked, "That was all on the phone?" he said, "Yeah." 

15. It seems to me, therefore, that from B’s recounting, it appeared that he and his mother had looked through the phone, on which these images were stored, the night before he was interviewed by police.  Something further to take into account is that it is clear on the evidence that B had remained in his mother's care from no later than 8 June 2016 until the time of this interview on 7 July 2016.

16. The mother – who was not present, of course, during B’s interview with police on 7 July – has provided evidence of what she says she was told by the interviewing officer after the interview.  Her evidence is that she was told that, during the interview, B had disclosed the following:

    a)The father had touched him in his private parts on two separate occasions, during which he cried and told his father to stop, but he would not.

    b)The father had asked to take a picture of B and D naked.

    c)On one occasion, the father had tried to take a naked picture of B after his bath, but he had run around and used his towel to cover himself.

    d)He had witnessed his father asking to take a naked photo of D.

    e)The father often asked D to sleep with him in his bed.

    f)B did not like his father, and was afraid ever to go back.  

    g)The father often walks around naked in front of the children and his penis is floppy.

17. Some of those matters did not, it seemed to me, arise out of the interview conducted by the police with B.  For example, I was not sure from my two viewings of that interview that there was any comment made in relation to the father asking D to sleep with him in his bed – although it is certainly something that has been raised by the mother in relation to comments she says were made by the children to her earlier. 

18. Additionally, and more importantly, it seemed to me that at no time during B’s actual interview with police did he say that his father had touched him on his private parts on two separate occasions.  He certainly made comments to the effect that his father had tried to touch him or had tried to touch his rude parts.  He made comments that his father had tried to take, or had wanted to take, a photo of him and he put a towel over his head and locked the door.  My listening to his interview, as I have said, did not reveal anything other than his assertions that his father had tried to touch or tried to wobble or tried to touch him on his private parts, demonstrating what I have described as a rotating hand motion, like using a cloth to wipe a table, or in a pinching motion.

19. Further, it is, I think, relevant to note that, when he was asked whether his father had ever tried to touch him before, he said to police: "Yes.  Once when I was, like, four, and another time when I was six, and I think another time was," and his answers trailed away.  He also said that all of those other times – his mother saw and she told his father, "Don't do that to my son."  It must be remembered that at the time of his interview, B was eight years and three months of age. 

20. I am not, as I have said, persuaded from listening to B’s interview that he ever said that his father had, in fact, touched him in his private parts on two separate occasions.  At its highest, he makes assertions in the context that I have already just outlined about attempts to do so.

21. Insofar as what he says he saw his father do towards D, he initially started by telling police that his father had done the same thing to him:  that is, he tried to (and B did a hand motion out from his body).  When asked by the police officer whether his father did touch it, he said yes.  When asked what D did, he said that he just yelled at him, like: "Don't do that," and pushed him. This had occurred whilst D was drying himself when coming out of the shower, and his father had gone into the bathroom to shave his beard, and it seems B was present because he was brushing his teeth.  When asked whether he remembered when this event occurred, he said: "Like, two years ago, one year ago.  I don't know."

22. Nothing in the outline or information provided by B that I have summarised briefly thus far suggests to me that, whatever the father did to D – at a time when he was going into the bathroom to shave, D was coming out of the shower and B was brushing his teeth – is suggestive of any action that could in a way be thought to involve a sexual connotation.

23. It is clear – and this is something to which I have already adverted – however, that, for B, he feels left out when he is spending time at his father's house.  It appears from his perspective that he feels that D is telling his father that he is telling his mother what's happening in the father's household.  He feels left out.  He draws the conclusion that D hates their mother because he, D, is always saying, "I want to live with my dad." 

24. It cannot be in these boys' best interests in any way to permit a situation to continue where, for B, he continues to think that, even if D was simply saying he wished to live with his father, this meant he hated their mother.  It could not possibly be thought by anyone that to permit such a situation to continue is in their best interests at all.

25. Similarly, to police he said – when asked to return to the comment that he had felt sad and mad at his father's – that he felt a little left out.  Again, a continuation of a situation where his time with his father was limited, in circumstances where, as I have said, I do not consider the contents of the information he provided to police to suggest that he would be at an unacceptable risk of harm in his father's care, is not something that could be thought to be in his best interests.

26. A perusal of the rest of the interview by police seems to me to result in conclusions that, whilst B may well be the subject of discipline whilst in his father's care, it appeared to be discipline that involved him being grounded;  that there seemed to be a system of demerit points, and that people seemed to get a “free pass” once a week (by which I infer that what he was saying is that some aspect of bad behaviour was excused and didn't form part of the system).  There was nothing, it seems to me, in B’s information to police about the care his father provided in terms of food and matters of discipline, that would permit of a conclusion that he would be at an unacceptable risk of suffering harm if he spent more time with his father than his mother proposes.

27. Insofar as his assertion that he was put into time out for one hour is concerned, the weight to be accorded to such an assertion needs to take into account the issues of his recounting of the event about D (the two years ago, one year ago event) and his comment to the police when asked whether the father had ever tried to touch him before, his comments that it was once when he was four and when he was six, etcetera;  those comments being suggestive, it seems to me, of understandable issues in terms of accurately recounting time periods, particularly given his age.

28. Whilst it seemed that submissions made on behalf of the father rested upon comments that D had made to police on 4 August, vis‑à‑vis the mother's interaction with him, a number of things need to be noted.  It appears that, from D’s recounting to police, on a Friday the children were kept from school by their mother; taken to Brisbane; she saw her lawyers, and they waited in the waiting room.  Given the chronology of the matter and the correspondence passing from the mother's solicitors to the father, it seems to me to be highly likely that that occasion was on 3 June 2016.

29. Whilst it is apparent from D’s comments to police that he says that, on that occasion, whilst in a food court with his brother, his mother and her husband, there was some discussion about whether he should be that afternoon going into the father's care; he recounted that his mother had punched him with some sort of a fist.  It did not seem to me that such an event would permit of a conclusion that D would be at an unacceptable risk of suffering harm if he returned to spending time with his mother.  After all, whatever happened on that occasion occurred in a public place, in the presence of another adult and other adults. 

30. Other aspects of D’s interview with police, however, do raise some concerns for me.  For example, he recounted the mother printing off the father's emails and getting him to read them.  If such behaviour was to have occurred in the manner that D described it, it could not be thought to be a positive for him, and certainly would provide some context to Dr H's comments that D appears to feel caught in the middle of conflict, and not to know who of his parents is telling him the truth. 

31. It is also concerning, from the perspective of D’s ongoing relationship with his mother, to listen to him saying about her that she's not really nice: that she seems nice – and then to recount what it seems to me to be highly likely to be disagreements about matters that arise more out of his developmental age (and issues between him and her arising from that) than anything else.

32. It is of concern, as I have already noted, that, in talking to the police and talking about B’s time with his mother, D used the same term, “brainwashed” – the same term his father had used in his communications with Dr H.  It could not be thought to be a positive for D to be exposed, whilst in his father’s care, to such comments.

33. I note also that, when the police asked D about being touched on private parts or whether it would be a good or bad touch or right or wrong for someone to touch his private parts, he knew that that was wrong.  When asked whether anyone had ever touched him there, he referred to events at the school and other children trying to slap each other’s “butts”, to use his term.  When asked, “At home?”, he said that had never happened.

34. He also said, when asked whether he had ever seen pornography, that that was watched at C School.  When asked whether he had ever watched pornography at home, he said no; he thought it was gross.  And when asked whether his father had ever shown him that, he said no, his father had not shown him any pornography at home.  When asked whether his father had ever taken a photo of him without clothing, he said when he was a baby.  When asked “now?”:  that is, whether that had occurred now – he said no.

35. Those matters are clearly relevant to any assessment of any answer to the issue of whether the children would be at an unacceptable risk of harm if they were to spend more time with their father than their mother’s proposal at present.

36. For the reasons I have just expressed, I am not persuaded that the children would be at an unacceptable risk of harm if they spent more time with their father than their mother proposes. 

37. Rather, I consider that the children’s best interests will be met by order which will ensure that they return to live together and that they return to having the opportunity to spend time with each of their parents in the manner previously agreed by their parents and implemented by their parents since November 2013 when the consent orders were made.

38. If there is a basis upon which it is necessary to make any change to those parenting arrangements, that determination can, in my view, more properly occur with the assistance with the family report and can more properly be considered again after the family report is prepared and released to each of the parties.

39. It is not, in my view, in the children’s best interests that they be separated from each other.  It is not, in my view, in D’s best interests that he fail to have the opportunity to spend time during the week with not only B but, also, his half-sister, J. 

40. Similarly, it is not, in my view, in B’s best interests, given the findings I have made in relation to the contents of the interview undertaken by police of him on 7 July of this year, to have a restriction on the time that he spends with his father or the opportunity to deal with the issues in their relationship. 

41. There is, it seems to me, a very real possibility that, absent orders which provide for a return to an equal time parenting arrangement, B may continue to feel excluded or left out or less part of things in his father’s care; and that there is, for him, further cemented this idea that it is appropriate that he and his brother live separately and spend different time with each of their parents.

42. It is not, in my view, in D’s best interests to continue to attend at his current school.  He has, after all, only attended there for about a week.  It is, in my view, in his best interests that he return to attend C School where he has attended until 8 June of this year. 

43. Again, whether arrangements into the future need to be made to change these long-standing schooling and educational arrangements for him is something which can better occur after the assistance of a family report and on the basis of evidence about the potential benefits and/or disadvantages to each of the children of attendance at either C School or some other school.

44. It is better, in my view, and something which is in D’s best interests, for him to return to his known peers and peer group at the school at which he had attended prior to 8 June 2016.

45. In attempting to determine the method by which there will be a return to the implementation of the alternate week parenting regime pending the preparation and release of the family report, I have concluded that orders which would see the father collect B from after school tomorrow and then see B and D live with their father – with either D returning to C School if the school is able to accommodate an immediate return this week or, if not, by the start of next week – and the children spending time between tomorrow afternoon and Sunday afternoon with their father.  Whilst that is a slight change to the alternate week parenting regime, it affords to B the opportunity to spend weekend time with his brother and father.

46. I then think it is appropriate and in the children’s best interests that both B and D return to their mother’s care on Sunday afternoon and, thereafter, the parties implement the week-about parenting regime.  So the changeover would occur this Sunday at a place as provided for by the existing consent orders unless otherwise agreed by the parents in writing. 

47. Thereafter it is, in my view, in the children’s best interests that the parties return to the implementation of the alternate week parenting regime pending the preparation and release of the family report.

1. One of the other issues about which the parties were in dispute was the manner in which the family report would be funded. 

2. The mother and, I think, the Independent Children's Lawyer proposed that the costs of this report (which are said to be $3000 plus GST) be shared equally between the parents. 

3. The father opposes this on the basis that he cannot afford to contribute to the costs of the same as he is unemployed and legally aided in the proceedings before me. 

4. No submission was made by Dr Brasch QC, who appeared on behalf of the mother, that her client could not afford to meet the entirety of the cost of the family report.

5. The submissions made on behalf of the father about his impecuniosity are, in one sense, corroborated by aspects of the mother’s criticisms of his parenting of the children, because those criticisms include, in broad brush, that his financial  circumstances are such that he cannot afford to look after them properly.

6. Given these matters, it seems to me that the only way in which the parties and the Court will be able to obtain a family report in the time frame suggested and agreed between the parties is if the mother is initially responsible for the costs of the same. 

7. However, so as to cater for the possibility that the father’s financial circumstances change during the period the parties remain engaged in proceedings before a court exercising jurisdiction under the Family Law Act, there should be reserved to the mother the opportunity to seek, at any final hearing, an order that would require the father to contribute half the costs of the family report.

8. The remaining issue is one that I raised with the parties’ legal representatives and the Independent Children's Lawyer during the hearing last Friday. That relates to the possibility of an order transferring these proceedings from this court to the Federal Circuit Court. That possibility is made possible by section 33B of the Family Law Act which, at subparagraph (6) of that section outlines those matters to which the Court must have regard in determining such an application.

9. Those matters include the contents of any standard rules of court made for the purpose of subsection (4), the transfer; whether there are proceedings in respect of an associated matter pending in the Federal Circuit Court; whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and the interests of the administration of justice.

10. There are no proceedings in respect of an associated matter pending in the Federal Circuit Court as far as I am aware. 

11. Whilst there are clear concerns about the extent of all resourcing available to both this court and the Federal Circuit Court of Australia, there is nothing to suggest that the resources of that court are insufficient to hear and determine the proceeding if it is transferred.

12. Insofar as the issue of the interests of the administration of justice are concerned, I consider that the fact that I have been able to afford to this matter a more fulsome hearing on an interim basis – that is, one which has permitted me to view the recordings of each of the children and to make available to the parties the opportunity to view the same in the course of the hearing – suggests that a transfer of these proceedings to the Federal Circuit Court of Australia (even if attended by some delay) is not suggestive of anything other than the fact that the matter could be afforded a further interim hearing at an appropriate time.

13. The proceedings were brought before this Court as a result of a request for an urgent listing.  This saw the two appearances last week. 

14. There is nothing – given the findings that I have expressed, albeit on an interim basis but in the circumstances I have already outlined – it seems to me in this matter that could be thought (within the context of the usage of this word) to be

    
    

    “complex” as that is understood for the purposes of the transfer of proceedings from this court to the Federal Circuit Court.

15. Clearly, that court has a number of judicial officers sitting in the Brisbane registry of that court who specialise in parenting matters. There is nothing, it seems to me, of the other matters set out in rule 11.18 of the Family Law Rules that requires particular consideration.

16. There were no submissions made on behalf of any party to raise any particular issue; or raise, in particular, any of those matters prescribed by rule 11.18 as matters of discretion to which consideration must be given in determining whether an order for transfer is appropriate.

17. As I have said, there is nothing in the material to suggest that there are now factual matters of complexity or that there are any particular complex issues of law as between the parties so as to warrant the matter remaining for further determination within this court rather than the Federal Circuit Court.

18. I have no doubt that that court is well-placed to deal with this matter and to make whatever appropriate directions are determined by the relevant judicial officer to be necessary for its finalisation.

19. In all the circumstances then, having determined this interim parenting application, it seems to me to be appropriate that an order is made transferring the proceedings to the Federal Circuit Court of Australia at the Brisbane registry. 

20. For these very brief reasons then, that is the order that will be made in relation to the transfer of proceedings.

21. Similarly, for the reasons I’ve already expressed, I have concluded that the making of interim orders was necessary pending the disposal of the proceedings by the Federal Circuit Court of Australia and, therefore, pursuant to section 33B(7) of the Act, an interim parenting order shall be made in terms intended to give effect to the reasons I have just delivered orally.

22. The orders will then issue by the Court.

23. I will include in the order an order that the Independent Children's Lawyer has leave to inspect and copy the unredacted documents produced by the Department and to provide a copy of the same to the author of the family report on the proviso that any details identifying any notifier are redacted by the Independent Children's Lawyer prior to the provision of such documents to Mr G.

24. The orders will also include orders in the terms already agreed by the parties.

25. Just so the record is clear: there will also be orders in terms of paragraphs 1, 3 and 5 of the copy of the handwritten proposal provided to the Court by the Independent Children's Lawyer on 5 August 2016.  Those orders will be made by consent.

26. As I have already outlined, there will also be orders in relation to the manner in which the issue of the costs of the family report is dealt with and there will also be orders that deal with the children’s return to attending at C School.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 August 2016.

Associate: 

Date:  12 August 2016