Kontou & Naggia

Case [2024] FedCFamC1F 698

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kontou & Naggia [2024] FedCFamC1F 698

File number(s): PAC 3809 of 2022
Judgment of: ANDERSON J
Date of judgment: 18 October 2024
Catchwords: FAMILY LAW – PARENTING – Family violence – Where the children have not spent time with the father for five years – Whether the father should spend supervised time with the children – Whether the mother’s parenting capacity would be adversely impacted if the Court makes an order for the children to spend time with the father – Permanent separation from a parent – No matters of principle
Legislation:

Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CA, 60GC, 61B, 61C, 61D, 61DAA, 61DAB, 62B, 64B, 65AA, 65D, 65DA, 65Y, 68B, 100B, 114AB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15

Births, Deaths and Marriages Registration Act 1995 No 62 (NSW) s 28

Crimes Act 1900 (NSW) ss 61AA, 112
Cases cited:

Attwood & Attwood [2022] FedCFamC1F 6

Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222

Beach and Stemmler (1979) FLC 90-692

Bennett and Bennett (2001) FLC 93-088; [2001] FamCA 462

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17

Cao and Cao (2018) FLC 93-880; [2018] FamCAFC 252

Chapman & Palmer (1978) FLC 90-510; [1978] FamCA 86

Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18

Fitzpatrick and Fitzpatrick (2005) FLC 93-227; [2005] FamCA 394

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Flanagan and Hancock (2001) FLC 93-074; [2000] FamCA 150

G & C [2006] FamCA 994

Gorman & Huffman and Anor [2016] FamCAFC 174

H v R [2006] FamCA 878

Heron & Heron [2024] FedCFamC1F 465

Hickson & Matthew [2022] FedCFamC1A 161

N and S and the Separate Representative (1996) FLC 92-655; [1996] FLC 92-655

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Knight v R (1988) 35 A Crim R 314

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96

M v M (1988) 166 CLR 69; [1988] HCA 68

Moose v Moose (2008) FLC 93-375; [2008] FamCAFC 108

Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4

Smith v Aircraft Maintenance Services Australia (AMSA) Pty Ltd [2018] FCA 264

Summerby & Cadogen [2011] FamCAFC 205

Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance
Number of paragraphs: 220
Date of hearing: 26–29 August…

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AGLC
Kontou & Naggia [2024] FedCFamC1F 698
Case
[2024] FedCFamC1F 698
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a case involving Kontou and Naggia, focusing on parenting arrangements for their two children, aged six and seven. The primary dispute was over whether the children should have supervised contact with their father, given the significant allegations of family violence, drug use, and sexual abuse. Both parents contested the other's capacity to parent effectively, particularly in light of the children's special needs. The court had to determine whether the children's best interests would be served by any contact with the father and if such contact would adversely affect the mother's ability to parent.

The court considered several key issues, including whether the father had perpetrated family violence, physically assaulted the children, engaged in drug use, and sexually abused the mother’s eldest daughter. The mother provided detailed accounts of violent incidents and argued that the father's behaviour posed a significant risk to the children. The father denied these allegations but admitted to drug use and incarceration during the relevant period. The mother’s evidence was corroborated by her adult son, while the father’s application to exclude the son’s evidence under the Evidence Act was dismissed. The Independent Children’s Lawyer did not advocate for any contact between the children and the father.

The court concluded that the children should not spend time with their father due to the serious allegations of family violence, drug use, and the risk of harm. It found that the father's past conduct and current circumstances did not support safe and supervised contact. Additionally, the court determined that the mother's sole parental responsibility and decision-making authority were in the children's best interests, given the evidence of the father's unsuitability to parent. The court also imposed restrictions on both parents to prevent them from denigrating each other in the presence of the children and attending certain locations. The Independent Children’s Lawyer's appointment was discharged, and other applications were dismissed.

Orders

Orders of the court

PAC 3809 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR KONTOU

Applicant

AND:

MS NAGGIA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

18 OCTOBER 2024

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

2. The mother shall have sole parental responsibility for X born 2016 and Y born 2017 (“the children”), and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children.

3. The children live with the mother.

4. The children spend no time with the respondent father.

Restraints

5. The parties are restrained, and injunctions are granted restraining each of them from:

(a) Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so; and

(b) Discussing the allegations the subject of these proceedings in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.

6. The father is restrained, and an injunction is hereby granted restraining him from:

(a) Attending at or within 100 metres of any school attended by the children;

(b) Attending at or within 100 metres of the mother’s residence; and

(c) Attending at or within 100 metres of the mother’s place of work.

Discharge of the Independent Children’s Lawyer

7. The appointment of the Independent Children’s Lawyer be discharged.

Other

8. That pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

9. That pursuant to s 65DA(2) 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 are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

10. All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) are dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The parties do agree that parental responsibility ought to be allocated to the mother and that the mother ought to have sole decision-making authority for decisions concerning major long‑term issues. For reasons discussed below, and whatever the agreement between the parties, the circumstances call for an order that the mother exercise sole parental responsibility.BACKGROUND These proceedings, like many proceedings in this Court, were characterised by allegations of parental incompetence, mistrust of the other parent, and physical and sexual abuse of the children. The father is aged 47 years. The father has two children from a prior relationship, daughters aged 21 years and 17 years respectively. The father’s eldest daughter filed an affidavit in support of her father’s application and was cross-examined by counsel for the mother and the Independent Children’s Lawyer. The father has been unemployed since December 2022.[7] He previously worked in transport but says that he is currently unable to work because he has trouble sleeping.[8] On interview by the Family Report writer, the father also attributed a cause of his unemployment to the mother, suggesting that affidavit material filed by the mother in this Court had diminished his “mental and emotional wellbeing”.[9] For reasons discussed below, the Court also finds that the father’s lengthy period of unemployment can in part be attributed to his use of drugs during the period mid-2023 to mid-2024, and the father’s incarceration on multiple occasions during that same period.[10][7] Family Report dated 15 March 2023, paragraph 30.[8] Father’s affidavit filed 2 August 2024, paragraph 10.[9] Family Report dated 15 March 2023, paragraph 30.[10] Exhibit M5. The mother is aged 47 years. She is the mother of five children aged between six years and nineteen years, including the two children the subject of these proceedings. She is unemployed. The mother says that she is so unemployed in circumstances where her life is consumed by the attention, which she says it is necessary to give to her children but particularly, to the two children the subject of this parenting dispute. Each of them has disabilities. The mother advised the Family Report writer that she previously made attempts to work 16 hours a week in a “flexible arrangement” but said that even this limited arrangement “was not sustainable”.[11][11] Family Report dated 15 March 2023, paragraph 56. At age four, the elder child was diagnosed with global developmental delay (within the moderate range), behavioural difficulties and autistic features.[12] Although the medical and psychology clinic report relating to the elder child was not tendered by any party or the Independent Children’s Lawyer, it was the mother’s written evidence that the elder child was assessed as meeting the criteria for an autism spectrum disorder in 2021 at which time the child was aged five years. Specifically, the elder child was assessed as Level One (Requiring support) for social communication and Level Two (Requiring substantial support) for restricted, repetitive behaviours.[13] The mother’s evidence was not challenged by the father or the Independent Children’s Lawyer.[12] Exhibit ICL5, p.2.[13] Mother’s affidavit filed 12 August 2024, paragraph 36.

Evidence

Evidence Before The Court

At the outset of the trial, the Independent Children’s Lawyer did not promote any time between the children and the father. Further, the Independent Children’s Lawyer supported the mother’s applications for travel, to have the children’s surnames changed and otherwise, supported various applications for the personal protection of the mother and the children pursuant to s 68B of the Act. On the hearing of the evidence, the Independent Children’s Lawyer did not alter his position save that his counsel advised the Court that the Independent Children’s Lawyer no longer supported the mother’s application to change the children’s surnames.EVIDENCE The father relied upon:(a)The father’s affidavits filed on 2 August 2024 and 19 August 2024; (b)The affidavit of the paternal grandfather filed on 2 August 2024; (c)The affidavit of the father’s adult daughter filed on 2 August 2024;(d)Financial Statement dated 27 August 2024[47]; and(e)Tendered documents.[48][47] Exhibit F7.[48] Exhibits F1–F13 (inclusive). On the morning of the fourth day of trial, the father’s counsel made an oral application to adduce further evidence from the paternal grandfather by way of an affidavit in his name. The mother’s counsel and the Independent Children’s Lawyer consented to the admission of that affidavit into evidence.[49][49] Affidavit of the paternal grandfather filed 29 August 2024. The mother relied on her affidavit filed on 12 August 2024 and the affidavit of her adult son filed on 12 August 2024. On day three of the trial, the mother’s adult son was cross-examined by the father’s counsel and counsel for the Independent Children’s Lawyer. After asking a few questions only, the father’s counsel made an application to the Court to exclude the evidence of the mother’s adult son pursuant to the terms of s 135 of the Evidence Act 1995 (Cth) (“Evidence Act”). The evidence was primarily directed to the violence, which the mother’s son says he witnessed and suffered because of the alleged actions of the father. On cross-examination by the father’s counsel, it became apparent that:(a)the mother’s son prepared his affidavit whilst sitting in proximity with his mother; and(b)the mother transcribed her son’s evidence on his dictation of the same. On cross-examination by the father’s counsel, the mother’s adult son said that at no stage prior to the preparation of his affidavit did he read his mother’s affidavit. He also indicated to the Court that his mother did not make any correction to the terms of the document as dictated by him and that the words in the affidavit were his words. Section 135 of Evidence Act reads as follows:The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:(a)be unfairly prejudicial to a party; or (b)be misleading or confusing; or(c)cause or result in undue waste of time. When considering any application under s 135 of the Evidence Act, the Court is required to balance the “probative value” of the evidence against the “dangers” listed in the three sub‑paragraphs set out therein. The Court notes that the dangers must “substantially” outweigh the probative value of the evidence. This is another way of saying that there is a heavy onus on the party seeking exclusion, and that exclusion will only be justified in a clear case.[50] On balance it was my view that the application by the father failed having regard to each of the sub-sections of s 135 of the Evidence Act. I declined the father’s application.[50] Smith v Aircraft Maintenance Services Australia (AMSA) Pty Ltd [2018] FCA 264 at [38].

Decision

Reasons for decision

As discussed above, the mother seeks an order restraining each party from using social media in what is described as an “inappropriate manner”. The order in its terms is incomprehensible. I decline to make the order. In any event, I consider that the injunction I have made with respect to each party’s denigration of the other parent is sufficient to address the mother’s concerns.CONCLUSION The orders set out at the commencement of these reasons are those that most capably meet the children’s best interests.

Ratio Decidendi

Legal Principle Established

It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and considered by me. CONSIDERATION AND DETERMINATION After hearing the evidence, I formed a view that the significant issues in the case were:(a)Whether the father perpetrated family violence towards the children and the mother. The mother alleges this occurred prior to separation and subsequent to separation; (b)Whether the father physically assaulted the children of the relationship;(c)Whether the father engaged in drug use and/or distribution during the relationship and subsequent to separation;(d)Whether the father sexually abused the mother’s eldest daughter and the younger child the subject of these proceedings;(e)Whether the father has the capacity to parent children who have complex needs;(f)Whether the risk of harm can be ameliorated by an order for supervision;(g)Whether the mother’s parenting capacity would be adversely impacted if the Court makes an order for time spending between the children and their father; and(h)The potential adverse impact upon the children of a permanent separation from their father.Family Violence and alleged physical assault of the children The mother says that the father is a perpetrator of family violence. She also says that the father physically assaulted the children of the parties’ relationship. The mother identifies with some particularity episodes of family violence. I set them out below together with the father’s response. First, the mother says that in 2013 and following an argument, the mother locked the father and his daughters outside the home shared by the parties.[56] The mother says that the father was “screaming and grabbing whatever he could find and throwing it across the garden. He grabbed two bins and smashed them onto the fence”. The mother says that the father’s two daughters were “cuddling each other and crying” as they watched their father.[57] The mother also says that the father “smashed his fist into my fence, causing it to dent”.[58] In support of the mother’s allegation about this event, the mother sought to tender a photograph of damage to a fence. The photograph was undated, and the mother gave no evidence as to its provenance. This being so, I declined to mark the photograph as an exhibit. [56] Mother’s affidavit filed 12 August 2024, paragraph 28(a).[57] Mother’s affidavit filed 12 August 2024, paragraph 28(a).[58] Mother’s affidavit filed 12 August 2024, paragraph 28(a). On the mother’s case, the incident is corroborated by the evidence of her adult son who says that:I was scared and remember standing in the middle of the lounge room listening to what was going on. I could hear lots of noises of things being thrown. He eventually went up the side of the house as I heard him punch the fence. It was loud.[59][59] Affidavit of the mother’s adult son, paragraph 6(j).