Kontosis & Hodge
[2022] FedCFamC2F 457
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kontosis & Hodge [2022] FedCFamC2F 457
File number(s): ADC 1179 of 2011 Judgment of: JUDGE BROWN Date of judgment: 16 March 2022 Catchwords: FAMILY LAW – children – parenting arrangements for two children – where the father has not spent time with the children for three years – where there are contentions surrounding a previous assault of one of the children – where one child has Autism Spectrum Disorder and the other child has an intellectual disability – where time should be supervised – whether time is to be supervised at a children’s contact centre or whether lay supervision should occur – best interests of the children – assessment of risk – cautious approach – matters to be considered. Legislation: Family Law Act 1975 (Cth) s 60CC.
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
Cases cited: Marvel & Marvel (No. 2) [2010] FamCAFC 101. Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 16 March 2022 Place: Adelaide Counsel for the Applicant: Mr Charman Solicitor for the Applicant: Adelta Legal Counsel for the Respondent: Mr Starkie Solicitor for the Respondent: Sills & Associates ORDERS
ADC 1179 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KONTOSIS
Applicant
AND: MS HODGE
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
16 MARCH 2022
THE COURT ORDERS THAT:
1.There be no order as to the lay supervision of the father’s time with the children.
2.The parties are to enrol at the Suburb B Children’s Contact Service within 7 days of today’s date pursuant to the orders of 3 February 2022.
3.Further consideration of the matter is adjourned to 25 March 2022 at 9.30am for directions via MS Teams using the same login details as used for today’s hearing NOTING it is anticipated that the parties will be able to confirm the necessary arrangements for attendance at the Suburb B Children’s Contact Service have taken place.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kontosis & Hodge has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected of errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
In this matter of Kontosis & Hodge, I am confronted with a difficult matter which, in eloquent form, demonstrates the imperfections of the adjudication system relating to parenting disputes between parents, who are in rigorous disagreement with one another, and have been for a significant period of time.
BACKGROUND
The case involves twins, X and Y, who were born in 2009 (hereinafter referred to as “X” and “Y” respectively, and “the children” collectively). So the twins will be 13 years of age in a matter of weeks. Their parents are Mr Kontosis (hereinafter referred to as “the father” or “Mr Kontosis”) and Ms Hodge (hereinafter referred to as “the mother” or “Ms Hodge”).
As a consequence of initiatives funded by both the Commonwealth Government and the Government of South Australia, I have information about the family which has been provided by the Family Court Liaison Officer at the Department for Child Protection (hereinafter referred to as “the Department”), who is a person by the name of Ms C, and she wrote a report in brief form about the twins and the involvement of the Department on 14 December 2021.[1]
[1] See email of Ms C dated 14 December 2021.
She indicated that between 2012 and 2016, the Department had received 10 notifications relating to child protection concerns about the twins, and they included that the mother’s home was unhygienic, that the twins had been seen dirty and, at times, with bruises.[2]
[2] See email of Ms C dated 14 December 2021.
These are significant concerns, because Y is a child who suffers from Autism Spectrum Disorder and is, as I understand, non‑verbal,[3] and the Department have received notifications that Y had been found near a roadway. There are also allegations that X has been exposed to sexual abuse of one form or another.[4]
[3] See Affidavit of Mr Kontosis filed 8 April 2021 at [16].
[4] See email of Ms C dated 14 December 2021.
Against that extremely difficult background, the parties have been in litigation with one another, which began in March 2011. Those proceedings were finalised in March 2012, and at that stage it was agreed between the parties that the twins would live with their mother, and X and Y would spend time with their father on alternate weekends, from 10:00 am on Saturday until 5:00 pm the following Sunday.[5]
[5] See orders of Federal Magistrate Simpson dated 7 March 2012.
It was ordered at that time that the paternal grandfather be substantially present during those periods.[6] Apart from a contravention application that was initiated in mid‑2014 and finalised later that year, the parties have been able to get through without any further court involvement.[7]
[6] See orders of Federal Magistrate Simpson dated 7 March 2012.
[7] See Contravention Application of Mr Kontosis filed 2 May 2014; see orders of Judge Simpson dated 12 November 2014.
That changed in April 2021, when the father commenced the current round of proceedings. He did so with an application in which he sought that he begin, on an interim basis, to see the children for a long weekend from 4:00 pm Friday until 4:00 pm the following Sunday, as well as some defined time during the intervening week, and half of all school holidays.[8]
[8] See Initiating Application of Mr Kontosis filed 14 April 2021.
That application was made returnable on 27 July 2021. In his affidavit filed in support, Mr Kontosis said he had not seen either X or Y since early 2019, a period of about two years at that stage.[9]
[9] See Affidavit of Mr Kontosis filed 8 April 2021 at [4].
It is now, of course, closer to three years and that, I think, must be a significant matter. In the father’s affidavit, after deposing that he after having seen the children regularly, over a number of years, he currently did not know where the mother was living and did not know where the children were going to school.[10]
[10] See Affidavit of Mr Kontosis filed 8 April 2021 at [13], [15], [18]-[19].
The father conceded that there had been an incident which had occurred, he says, in late 2018. He had been travelling with his stepfather and the children to return the children to the mother. He says Y was hitting and biting X and he wanted to separate the children, when he accidentally struck the side of Y’s face.[11]
[11] See Affidavit of Mr Kontosis filed 8 April 2021 at [22]-[23].
The father asserts it was an accident. When the mother saw what is described as a red mark on Y’s cheek, she was upset and took the view that the child had been assaulted, and the police were informed.[12]
[12] See Affidavit of Mr Kontosis filed 8 April 2021 at [24]-[25].
The father, I think, has significant concerns about the mother’s functioning.[13] He also concedes that he has his own issues with his psychiatric health and has suffered from depression in the past, and he had some personal issues relating to his mother being unwell.[14]
[13] See Affidavit of Mr Kontosis filed 8 April 2021 at [29]-[30].
[14] See Affidavit of Mr Kontosis filed 8 April 2021 at [31]-[37].
In any event, it took him some time to bring the proceedings and, ultimately, some orders were made that the mother file a response, and the case was adjourned until November.[15] In the meantime, I have information about the view of the Department as to what happened in February 2019, pursuant to the injuries that Y allegedly received, and this is what the Department writes:
The Department received one notification in February 2019, pertaining to allegations that Y presented with what looks like someone had strangled her and she had broken capillaries, with purple and red marks around the base of Y's neck particularly on the side. It was reported that the bruises/marks appeared 'like a purple, not a solid finger, but multiple marks like a grip mark' and could easily have been from an adult hand, advised the marks are 10 – 15cm in size. Y also had a visible red mark on her face which was consistent with someone having slapped her. It was alleged that the father hit Y over the weekend. Additional allegations were received that Y had a tantrum and the father had slapped Y on the face and was holding her neck with his hand until she stopped. The Department completed an investigation and assessed that the harm ground ‘Alleged other inflicted injury’ was substantiated against the father. Y was referred to Child Protection Service (CPS) on 18 February 2019 and was seen on the same day. It was confirmed that the bruising was consistent with an adult slapping her on the face and grabbing her around her neck. However, it was clarified that they weren’t strangulation marks, rather the bruises resulted from an adult holding her down from wither [sic] side of her neck. From the joint investigation conducted by SAPOL, CPS and the Department, the father was reported by SAPOL in relation to physically assaulting Y. During the investigation, the mother presented as protective and child-focused, with the Department of the view that the mother had the capacity to ensure the safety and wellbeing of Y.[16]
[15] See orders of Judge Brown dated 17 September 2021 at order [1]-[2].
[16] See email of Ms C dated 14 December 2021.
The Department then closed its case. The Department then indicates that they received some notifications in May 2020 that related to the mother abusing the children and some concerns that the mother was struggling with the challenging needs of the children, but the Department did not feel that that warranted its involvement.[17]
[17] See email of Ms C dated 14 December 2021.
Other concerns were raised in July 2020 that Y was not attending to washing and hygiene. Again, that did not reach the Department’s threshold for a response, and there was a notification, finally, 21 September 2020, that Y’s behaviour had been escalating, and the mother was asking for respite as she was not coping, and the child, Y, was reported as removing her clothing, touching her genitals. Again, that did not reach what the Department regarded as its threshold for investigation.[18]
[18] See email of Ms C dated 14 December 2021.
The issue for me today is how the father can re‑engage with the two children after he has not interacted with them for a significant period of time. For obvious reasons, Mr Kontosis is anxious to resume his relationship with them sooner, rather than later.
In these circumstances he wishes his parents – well, his mother, Ms D, and his stepfather, Mr E, to be lay supervisors.[19] Mr E is a gentleman who was born in 1948, and is 74 years of age, and Ms D is 70 years of age.
[19] See Affidavit of Mr Kontosis filed 31 January 2022 at [16]; see Affidavit of Mr E filed 31 January 2022; see Affidavit of Ms D filed 31 January 2022.
I have no reason to think anything other than that they are in good health and, no doubt, they are anxious, each of them, themselves, to re‑engage with X and Y. They have each read the handout from the Legal Services Commission, which helpfully explains the duties of a supervisor.[20] It is a significant plank of Mr Kontosis’ case that they have been supervisors in the past, indeed, over a lengthy period of time, so that they know the children and they have discharged their responsibilities appropriately.
[20] See Affidavit of Mr E filed 31 January 2022 at [8]; see Affidavit of Ms D filed 31 January 2022 at [7].
It is also the father’s position that he has never been formally charged by the police, so it has not reached a threshold that this was a criminal matter, and the Department itself has had limited involvement, and they are not in a position to definitively say what did or did not happen.
Certainly, everyone agrees that this is not a case where the child, Y, has been strangled, that is, somebody putting their two hands around the throat of a child, which, of course, is a very serious species of assault indeed, and there is no medical evidence and Y, given her special needs, is sometimes a challenge to parent, particularly if she is agitated or upset about something, and this was a situation in the back of a car, which has its own potential dangers.
The mother’s position is that she does not trust the grandparents. She says that they have abused her in the past and there are issues between her current partner and the grandparents. It is also her position that the grandparents did not take the incident of February 2019 seriously.[21]
[21] See Affidavit of Ms Hodge filed 2 March 2022.
In these circumstances, she is open to the children spending supervised time with their father, but only if that supervision is provided by an independent and professional person.
On 3 February 2022, I adjourned the case until today only in respect of the issue of lay supervision, because, from the father’s point of view, he wishes to engage with the children sooner, rather than later.
On 3 February, I directed the parties to enrol at the Suburb B Children’s Contact Centre.[22] As is well‑known, there are significant delays in parents accessing the services of contact centres, not only in this state but in Australia generally. Many separated families, particularly those in high conflict, need the assistance of children’s contact services.
[22] See orders of Judge Brown dated 3 February 2022 at order [2].
It is the case that there are simply not enough of them, and the services that they can offer are limited, so they can only offer two hours per fortnight, at best, and usually the visits are limited to six in number, and an order was made that there be six sessions of supervised time on 3 February.[23]
[23] See orders of Judge Brown dated 3 February 2022 at order [2].
In an ideal world, we would be in a position whereby the parties would be shortly about to embark upon professionally supervised time. The mother has not been proactive in enrolling and, from the father’s point of view, it is his position that that must be indicative of her passive resistance to him having a proper level of relationship with the children, and against that background I should be urged to make the orders that he wishes.
THE LEGAL PRINCIPLES APPLICABLE
In this case, as in all matters to do with children, the best interests of the children concerned are the paramount or most important consideration. I am not to make orders that punish a parent for poor behaviour or a lack of insight. I am not to reward a parent for being disadvantaged. I must focus on what I think is best for the children concerned.
In so doing, I have to look at a long list of matters in section 60CC of the Family Law Act 1975 (Cth) (hereinafter referred to as “the Act”). Those matters are divided into two categories. The primary considerations, of which there are two – I have to consider the benefits of the children having a meaningful level of relationship with each of their parents and, secondly, the need to protect a child from coming to physical or psychological harm as a consequence of being exposed to neglect, abuse or family violence.[24]
[24] See Family Law Act 1975 (Cth) s 60CC(2)(a)-(b).
The additional considerations are lengthier and, amongst other things, I have to consider the nature of the children’s relationship with each of his or her parents; any views that the children have indicated; and any idiosyncratic issues to do with the child’s background, age, health, and so on and so forth.[25]
[25] See Family Law Act 1975 (Cth) s 60CC(3)(a)-(m).
In this case it must be, I think, a relevant matter that Y has some special needs, and I think X also has some learning difficulties.[26] What are the views of the children, of course, I have no idea, and in terms of their relationship with each of their parents and significant others, it is, I think, a relevant consideration that it is a period of three years since the children interacted with their father and, indeed, with their step‑grandfather and grandmother.
[26] See Affidavit of Ms Hodge filed 30 December 2021 at [36]; See Affidavit of Mr Kontosis filed 8 April 2021 at [16].
As their name suggests, the primary considerations are usually given more emphasis, particularly at an interim hearing such as this one. As a consequence of amendments to the Act,[27] I am directed to give greater priority to protective concerns, rather than to issues to do with meaningful relationship. Clearly, Mr Kontosis is interested in X and Y. He has pursued proceedings in the past and he has an order in his favour.
[27] See Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
I accept that there are, no doubt, explanations as to why he took some time to bring these proceedings, which relate to issues in his life, particularly his own mental health, but the fact remains that there is a significant gap in terms of his relationship with the children, and this, it would seem to me, is a case with many factors and many complexities, not the least of which is that the parties clearly have no capacity to communicate with one another about arrangements for the care of the children.
Invariably, at this interim stage, the court is called upon to assess risk: what is the risk of one particular scenario. Clearly, I cannot predict the future. It is a case of looking at the evidence and making some sort of assessment of what may or may not happen.
In this case, I do not know how Y and X are likely to react to seeing their father again after a significant period of time. Clearly, the mother does not particularly approve of the grandparents, so I must assess how they will cope with if something goes wrong, given their obviously fractured relationship with one another.
In a case known as Marvel & Marvel (No. 2), the Full Court indicated that at the interim stage, when evidence is contested and uncertain, the Court invariably adopts the cautious approach.[28]
[28] Marvel & Marvel (No. 2) [2010] FamCAFC 101 at [120] (Faulks DCJ, Boland and Stevenson JJ).
I acknowledge that Mr Kontosis is likely to be disappointed with what I am going to do, but I think it is necessary for me to be cautious in this case. I am disappointed that Ms Hodge – and how the error has occurred, I am not sure, but I am concerned that there is no indication as to when the time at Suburb B Children’s Contact Centre can commence, but this is a case which has all the hallmarks, in my view, of needing professional supervision.
The prospects of the parties and the step‑grandfather and grandmother having to deal with these children with special needs, after having not seen their father for a significant period of time – those risks, I think, are pronounced and extraordinary, particularly given that this is a case where there is evidence of at least something happening involving Mr Kontosis. I am not in a position to make findings about that, but I think it is a proximate response to the risks arising in this case that the resumption of time be subject to professional supervision.
CONCLUSION
For those reasons, I am not going to make an order that the father have time with the children subject to the lay supervision of either of the people nominated by him, and I dismiss that aspect of his case.
I will reiterate that the parties enrol at the children’s contact service at Suburb B within seven days of today’s date, and thereafter the orders that were made on 3 February 2022 take place when the supervisor of the children’s contact centre can nominate a time, and in order to ensure that that occurs I will adjourn the case until 25 March 2022 at 9:30 am, when it is anticipated that the parties will be able to confirm that the necessary arrangements have been made.
For all of these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 29 April 2022
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