Kouretas and Fitrakis
[2008] FMCAfam 738
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOURETAS & FITRAKIS | [2008] FMCAfam 738 |
| FAMILY LAW – Application to change recent consent orders – Rice & Asplund considered – assault of mother by father – further inquiry – minor changes made to existing orders. |
| Family Law Act 1975 (Cth) |
| Rice & Asplund (1979) FLC 90-725 SPS v PLS [2008] FamCAFC 16 |
| Applicant: | MS KOURETAS |
| Respondent: | MR FITRAKIS |
| File Number: | MLC 2706 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 27 June 2008 |
| Date of Last Submission: | 27 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms E.M. James (appointed by the Court as pro-bono counsel) |
| Counsel for the Respondent: | Mr K.F. Nicholson |
| Solicitors for the Respondent: | Berger Kordos Lawyers |
CHILDREN’S ORDERS
That all extant children’s orders be set aside.
That the children of the marriage [E] born in 2001 and [H] born in 2002 live with the wife.
That the husband and the wife have equal shared parental responsibility for the said children.
That the children shall live with the husband as follows:
(a)Each alternate week after school on Friday to the commencement of school, or 9:00 am Monday;
(b)In the intervening week from after school Friday to 4:00 pm Saturday;
(c)For one half of all term school holiday periods at times to be agreed, and in the absence of agreement for the first half of any holiday period with such time to commence after school on the last day of term (save that during such periods the husband shall ensure that the wife is able to speak to the children by telephone every second day between 6:00 pm and 6:30 pm and the husband shall facilitate the call by ensuring his mobile telephone is turned on and that he provides the wife with the number to call);
(d)By agreement between the parties during the long school holiday period or in the absence of agreement for one half of the holiday period being the second half in 2007/2008 and each alternate year thereafter and the first half in 2008/09 and each alternate year thereafter;
(e)From 5:00 pm Christmas Eve in 2007 until 5:00 pm Christmas Day 2007 and in each alternate year thereafter (and the order in paragraph 4 hereof be suspended for that period);
(f)From 5:00 pm Christmas Day in 2008 until 5:00 pm Boxing Day 2008 and in each alternate year thereafter (and the order in paragraph 3(d) hereof be suspended for that period);
(g)From 9:00 am Greek Orthodox Easter Saturday to 5:00 pm Easter Monday in 2009 and each alternate year thereafter.
(h)On Father’s Day from 5:00 pm on the preceding Saturday to 9:00am Monday;
(i)By telephone each Monday and Wednesday between 6:30 pm to 7:00 pm with the wife to instigate and facilitate the call to the husband’s landline number.
(j)For four hours on each of the children’s and the husband’s birthdays and in the absence of agreement from 3:30 pm until 7:30 pm (with the husband to collect the children from school and return to the wife);
(k)At such further and other times as agreed between the parties.
The children shall live with the wife at other times.
That for the purpose of the husband spending time with the children pursuant to these Orders the husband shall collect the children from school on Fridays and shall return the children to the wife to a place to be nominated by the wife, or the children’s schools as appropriate.
That the husband’s time with the children pursuant to Paragraph 3 herein be suspended as follows:
(a)On Mother’s Day from 5:00 pm on the preceding Saturday to 9:00 am Monday;
(b)From 5:00 pm Christmas Eve 2008 until 5:00 pm Christmas Day 2008 and each alternate year thereafter;
(c)From 9:00 am Greek Orthodox Easter Saturday to 5:00 pm Easter Monday in 2008 and each alternate year thereafter;
(d)At such further and other times as agreed between the parties.
That in the event that either party elects to take the children interstate during periods that the child is to spend time with them, then at least
21 days before any such trip the party shall provide to the other:
(a)The dates of travel;
(b)Particulars of the mode of travel including if appropriate flight details;
(c)The name, address and contact number of the accommodation where the children will be staying.
That each party forthwith advise the other of any significant illness or medical treatment provided to the child whilst in their care, including particulars of the treating practitioner and any medication as may be prescribed for the children.
Each party enrol in and complete a post-separation parenting course of the sort provided by Gordon Care as soon as practicable.
That the husband be in substantial attendance during his time with the children of either of them.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kouretas & Fitrakis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2706 of 2008
| MS KOURETAS |
Applicant
And
| MR FITRAKIS |
Respondent
REASONS FOR JUDGMENT
The parties entered into consent orders on 21 November 2007 at which time they were both legally represented.
Both parties now seek to change the orders made although it was the mother Ms Kouretas who filed the application that has given rise to this hearing.
The matters that the court is required to consider are:
a)the application of the rule in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) to the extant circumstances;
b)the evidence of the parties, most particularly in relation to the events of 15 March 2008; and
c)depending on the outcome of the Rice & Asplund point, the proposals of the parties insofar as they are not agreed.
Rice & Asplund
Given that the parties entered into consent orders as recently as November last year, it is no surprise that the father has taken the Rice & Asplund point. This rule has been recently reconsidered by Warnick J sitting as the Full Court of the Family Court of Australia SPS v PLS [2008] FamCAFC 16 (unreported – Warnick J, judgment delivered on 28 February 2008).
His Honour traversed the authority in respect of Rice & Asplund in detail. For these purposes I note the distinction his Honour drew between circumstances where Rice & Asplund is dealt with as a preliminary point and where it follows a full custody hearing.
Here what occurred was that I felt I was unable to rule on the Rice & Asplund point until I had formed a view about the competing factual assertions made by the parties. In a sense the Rice & Asplund point was dealt with as a preliminary matter but the process of doing so involved a full hearing on the evidence.
I note that in any event his Honour was of the clear view that even where Rice & Asplund is, as it were, taken at the end of the proceeding it still has work to do.
I also note the following extract from his Honour’s judgment at [84] which in my respectful view, well encapsulates the court’s task here:
“The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of events against the significance of the steps that might follow in the light of them.”
I approach this application with those principles in mind.
The Evidence
Both sides have filed affidavits and been cross-examined in this proceeding and it is perhaps sufficient to say at the outset that I think both sides are either capable of considerable exaggeration (the mother) or untruthfulness, whether witting or otherwise (the father).
I have been provided with a report prepared by Vincent Papaleo dated 17 June 2008 which neither party attacks. As I pointed out during the hearing it is the only evidence that is not subject to challenge.
From Mr Papaleo's report it appears that the orders entered into in November 2007 by consent worked perfectly well until March 2008. What then happened is Ms Kouretas withheld the children from all contact whether by telephone or otherwise.
It seems fairly clear, because this was what Mr Fitrakis himself told
Mr Papaleo, that telephone contact had for whatever reason been problematic in the period up to that time.
The mother's reasons for holding the children back are deposed to in her affidavit material.
They can be summarised as follows:
a)
The mother alleges that on 15 March 2008 Mr Fitrakis slapped her in the face (this was expanded in the course of her oral evidence to include an assertion that at the same time
Mr Fitrakis called her a "bloody bitch").
b)Alleged revelations by the children that Mr Fitrakis’ brother [J] had hit them.
c)Abusive phone calls from Mr Fitrakis.
d)Drug taking by [J].
e)The choking of [H] by [J], allegedly revealed by [H] on Sunday 16 March 2008.
f)A desire on Ms Kouretas’ part for the children to spend Saturdays with her so that they could play soccer at [omitted] with their half-sibling.
g)Concerns that the father was working on occasions when he had custody of the children (this latter was articulated more precisely in oral evidence).
Having studied the Court's file I am satisfied that most of these matters were fully, as it were, in issue prior to the making of the November 2007 orders. As such, in my view they fall squarely within the ambit of Rice & Asplund and would not of themselves be sufficient to justify reopening the orders made.
What the dispute is truly about is apparent from Mr Papaleo's report.
Mr Papaleo's report says at page 4:
“From [Ms Kouretas’] perspective, the issue is, and always has been about her doubts regarding [Mr Fitrakis] being in substantial attendance with the children, as compared to leaving them with his parents or their uncle.”
It is apparent from that extract that these concerns predate the consent orders in November 2007.
Mr Fitrakis, it should be noted, completely denied all allegations made against him, both directly i.e. the assault and indirectly through his brother.
In respect to the incident on the night of 15 March 2008 I have come to the conclusion that, although in some respects she has exaggerated, the mother's version of the events is far closer to the truth than the father's.
I do not believe that the mother has invented the alleged assault. Her evidence in this regard was given with conviction, and notwithstanding Mr Fitrakis' denials, I accept that in the stress of the moment he lost his temper and hit her.
This impression is reinforced by the fact that quite clearly something significant had to have happened on 15 March 2008 for the position, previously so relatively tranquil, to become so vividly confrontational.
I am reinforced in this regard by several matters in Mr Fitrakis' own evidence.
In paragraph 5 of his affidavit sworn on 6 July 2008, Mr Fitrakis says:
“On 15 March 2008 I did not approach [Ms Kouretas] nor did I slap her in the face. I do not believe that I came within five metres of the wife on this day.”
In his oral evidence Mr Fitrakis said that [H] was in his arms and he was trying to comfort her.
It is common cause that [H] was very upset on that day and was crying, and I conclude hysterically, for an extended period of time.
Ms Kouretas' evidence was that [H] was in the chair in the car and that she reached up to grab her and it was at this time that she was struck and sworn at.
The evidence as Mr Fitrakis has it, gives no indication as to how it was that this hysterical child came to transfer from his arms to the mother which is what on any view took place.
The mother's version of events is inherently more probable.
Further, given the evident ill feeling between the parties (and on the father’s part, manifested in the clearest way by the style in which counsel on his instructions cross-examined the mother), I think it is more probable than otherwise that Mr Fitrakis did lose his self control and swear at her as alleged.
Given the conduct of both parties in Court I also find it more probable than otherwise that any phone calls between them would be highly likely to degenerate into abuse by each side and I have no doubt that whoever may be more at fault, telephone communication between them would be fraught.
Further, I note that in his affidavit the father says he is not particularly close to his brother. That is in no wise the impression I formed of their demeanour in court. While I have not accorded overly much emphasis to this matter because there are emerging trends of authority to the effect that demeanour may be an inappropriate guide, it nonetheless is not irrelevant.
It needs to be borne in mind that Mr Papaleo said at page 4 of his report:
“I do not share the view of [Mr Fitrakis] that [Ms Kouretas] is trying to control him and making false claims in relation to the children, but rather it seems clear that she was very genuinely distressed, and feeling unable to protect her children. What subsequently eventuated was that [Ms Kouretas] contacted DHS who chose not to intervene because she was acting protectively.”
The way in which the father has conducted his case has been extremely dismissive of that very important finding made by Mr Papaleo.
Something has to have happened to cause Ms Kouretas to change in the way that she did. Although it is as I am well aware a finding of strong import, I find that Mr Fitrakis did hit Ms Kouretas and swear at her on Saturday 15 March 2008 and that [H] was hysterical at the time.
I further find that [H] said something that caused the mother to feel that she might have been choked or hit by [J]. Her report to DHS is entirely consistent with this.
Nonetheless, I note that Mr Papaleo was quite unable to come to any view as to whether or not [J] had hit the children. I further find that the mother through her natural but in my view somewhat exaggerated concerns, has largely fomented in the children any complaint that they have made. I note that in fact [H] is not able to speak very well and that the mother in fact completes sentences for her.
Like Mr Papaleo, I am not readily able to say exactly why [H] became so distressed in March, but I am satisfied that the mother's heightened levels of concern emerged not out of spite towards the father.
In my view, the assault on Ms Kouretas and her not unnatural response to it, and the disclosure perceived by the mother to have been made shortly thereafter have produced a state of affairs sufficient to justify a new enquiry.
What if any changes should be made
There is no question here of altering or interfering with findings made by another judge. The orders made in 2007 were by consent.
While I have accepted that the mother's concerns are genuine, her concerns about [J] which form the primary focus of her declared opposition to the current regime were all well known to her before the November 2007 orders.
Furthermore, and to a considerable extent unlike the other two witnesses, I thought [J] was a compelling witness. He impressed me as being direct and straightforward in his answers and I believe him when he says he has not and will not assault the children.
It therefore becomes a question as to whether the changes sought by the parties should be made.
I will say straightaway that I do not think it is appropriate to alter the weekend time regime established by the November 2007 orders in any substantial way. The mother seeks in effect to have more time with the children on Saturday mornings and on Friday night each other week. This is partly because she is concerned that the children are left alone with [J] and partly because she wants them to play soccer.
I have felt a lively concern at the fact that the father sends the children to Greek school from 9.00 am to 1.00 pm every Saturday. I found his evidence that he uses the time for errands and the like to be very unconvincing. I suspect it is highly likely that he works on at least some Saturday mornings as the wife alleges. Nonetheless I agree, if I may say so, with Mr Papaleo's observation at page 8 of his report that attendance at the Greek school or other extracurricular activity is a matter that falls "within the domain of parental decision and not court order".
I do not think that there is any good purpose to be served by altering the current pattern of weekend time. It was in place by agreement from November last year till March this year without difficulty. While the mother complains in effect that now the children are at school she does not get enough time with them at the weekend, this was something she either knew or should have realised at the time the orders were entered into in November.
The change I am prepared to make is that the children should be collected at close of school on those days when the father will have them. This was in fact agreed to by the mother and makes eminent sense as it will keep the parties apart.
Both parents agreed that a post-parenting course would be likely to be of assistance. I note that Mr Papaleo was of that view as well.
It is quite clear that both parents are involving the children completely inappropriately in their own interpersonal conflict and that this is causing the children stress. So much is clear from Mr Papaleo's report. It is also clear that in their mutual mudslinging the parties have been prepared to involve their children. The parties insisted upon the children talking in their presence before Mr Papaleo even though
Mr Papaleo did not wish them to do so. This idea that either side will prove that the other is an arrant and total liar while they themselves are telling the truth is a proposition both parties would be well advised to abandon forthwith. Neither were impressive witnesses. Both are plainly given to very considerable exaggeration and have real difficulty in seeing the truth objectively.
These parents must come to grips with the fact that their ongoing interpersonal distaste is damaging their children and they must consult Gordon Care or a like organisation as soon as practicable to try and get to grips with their own emotions with a view to ensuring the children's best interests.
The only other matter I am prepared to contemplate revisiting is the question of telephone time. It is clear that this has been problematic. This cannot have been foreseen in November last year or
Ms Kouretas would not have entered into the orders. In my view, the mother's proposal that telephone calls be initiated by her twice per week between 6.30 pm and 7.00 pm from her mobile is not inherently unreasonable and I will so order. In saying this I am conscious that removing an area of complaint from her is only likely to assuage her fears and produce a less volatile situation which can only be likely to foment the children's happiness.
It is clear from the report of Mr Papaleo that the ongoing trauma between the parents is causing real difficulty for the children and any step that can reasonably be entertained that reduces that difficulty is likely to be of considerable benefit.
Finally there is the question of [J’s] mental health. He agreed readily in the witness box to undergo a mental assessment and I have given some thought to doing so. I do not think it is necessary that he be forced to undergo that process, especially when it seems all too likely that it will only give rise to further litigation which is once again not in the children's best interest.
In conclusion, I would only say that these proceedings by both sides have been misconceived. Both parties are in substance running substantial contravention applications and it is that route that the parties should have explored.
I have drawn up draft minutes of orders to give effect to these conclusions but will give the parties an opportunity to study them before they are made final.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 25 July 2008
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