LIAKOS & SIEVERT

[2014] FamCA 189

FAMILY COURT OF AUSTRALIA

LIAKOS & SIEVERT [2014] FamCA 189

FAMILY LAW – CHILDREN – Father’s application to spend time with the child – where the father is serving a lengthy prison sentence for a serious criminal offence – where the child has not seen the father for several years – mother has sole parental responsibility – change of child’s surname – passport – father’s application withdrawn – best interests – orders made as sought by the mother and Independent Children’s Lawyer. 

Family Law Act 1975 (Cth)

APPLICANT: Mr Liakos

RESPONDENT: Ms Sievert

INDEPENDENT CHILDREN’S LAWYER: Schetzer Constantinou

FILE NUMBER: MLC 6154 of 2012

DATE DELIVERED: 28 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 6 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Harris

SOLICITOR FOR THE RESPONDENT: Women’s Legal Service Victoria

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Treyvaud

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Schetzer Constantinou

IT IS NOTED that publication of this judgment by this Court under the pseudonym Liakos & Sievert 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 MELBOURNE

FILE NUMBER: MLC 6154 of 2012

Mr Liakos

Applicant

And

Ms Sievert

Respondent

And

Independent Children’s Lawyer

REASONS

1. This matter was listed for final hearing before me commencing 6 February 2014. The proceedings were in relation to what time, if any, the child E born in 2000, (“the child”) and who is now 13 years of age should spend with the father, whether she should be permitted to change her surname to that of her mother’s, and whether her mother should be permitted to obtain a passport for her without first obtaining the father’s consent.

2. On 6 February 2014 I made orders, inter alia, giving the father leave to withdraw his application that the child spend time and communicate with him, that the mother be permitted to change the child’s surname and that the mother be permitted to obtain a passport for the child without having obtained the father’s consent. I indicated on that date that I would deliver reasons. These are those reasons.

Background  

1. The father and the mother commenced cohabitation in 1998 and separated finally, according to the mother, in 2002. There were proceedings in this Court commenced by the mother in 2005 and 2007 and intervention order proceedings in the State courts in both 2005 and 2006. In 2006 the father was sentenced to 12 months imprisonment for being a prohibited person in possession of an unregistered firearm and possession of a drug of dependence, and nine summary offences. Two hundred and forty-eight days of that 12 months sentence was suspended for 18 months.  

2. It is common ground that the child has not spent any time with the father since Easter 2007. On 26 April 2007 the mother filed an application in this Court seeking a recovery order for the child. On 27 April 2007 orders were made returning the child to the mother, restraining the father from removing the child out of the Commonwealth of Australia, and placing the child’s name on the Airport Watch List. On 9 May 2007 orders were made for the parties to apply to B Contact Centre to facilitate the father spending supervised time with the child. That supervised time did not take place.

3. In August 2007 the father was remanded in custody for a serious criminal offence. In September 2008, whilst on remand awaiting trial, the father filed an application in the Federal Magistrates Court, as it then was, seeking that the child spend time with him at the Melbourne Remand Centre. In October 2008 that application was transferred to this Court.

4. It is these events and the father’s ultimate conviction for a serious criminal offence which lie at the heart of the case before me. In June 2009 the father was sentenced to 20 years imprisonment, with a non-parole period of 17 years. The father had at that time already served a period of six hundred and forty-three days. On that basis, the father will be due for release sometime after 2023. The father has unsuccessfully appealed to Court of Appeal of the Supreme Court of Victoria and the High Court of Australia.

5. The father’s application came on for hearing before Dessau J on 17 September 2009. In anticipation of that hearing an order was made for the preparation of a family report. The report, which was prepared by Mr A, recommended that no orders be made for the child to spend time with the father as he did not consider it likely that the child would benefit from any communication with the father at that time.

6. On the 17 September 2009 Dessau J made final orders that the mother have sole parental responsibility for the child and that the child live with the mother. Her Honour ordered that the father not spend time with or contact or communicate with the child. Her Honour further ordered, although not as a condition of the other orders, that the mother ensure that the child attend counselling, that she request and authorise that counsellor to prepare a brief report as to the child’s progress, views and needs as to whether she should or should not spend time with or have any contact or communication with her father as soon as practicable at the expiration of 12 months of counselling, and that the mother authorise the child’s school to forward to the father copies of the child’s school reports, deleting any details that could identify the name or location of the school.

The current proceedings

1. These proceedings were commenced by the father by way of an initiating application filed 9 July 2012. In that application, the father sought the following final orders:

   ·    That within 14 days the mother provide all information in her possession or control as to the steps she has taken to ensure the child has undertaken counselling/therapy in accordance with the previous orders of 17 September 2009.

   ·    That the mother provide details of all doctors, counsellors and any health professionals the child has seen since the last court orders were made in this matter [on] 17 September 2009.

   ·    That as soon as practicable the mother do all acts and things necessary for the child to commence visits with the father every second Sunday at such times as the correctional facility where the father may be held from time to time permits.

   ·    That the mother forthwith do all acts and things necessary to ensure her compliance with paragraph 6 of the orders of this court made on 17 September 2009.

2. On 4 October 2012 orders were made by consent, inter-alia, that the mother serve copies of the child’s school reports upon the father, that she execute authorities to enable the Independent Children’s Lawyer to obtain information from the child’s counsellors and/or medical practitioners and school, that the Independent Children’s Lawyer provide a copy of the family report and any relevant orders to the child’s counsellor, and that the Independent Children’s Lawyer make enquiries as to what counselling or other support services are available to facilitate the child being informed as to the father’s circumstances.

3. On 16 November 2012 Senior Registrar FitzGibbon ordered, and this is significant for the purposes of the proceedings before me now, that the mother ensure that the child attend upon a suitably qualified counsellor approved by the Independent Children’s Lawyer for the child to be advised of her father’s circumstances, including his imprisonment. The Senior Registrar further ordered that the father’s initiating application and the mother’s response to that application be adjourned to list of cases awaiting trial directions to be listed, if practicable,  for a first day of a final hearing before Dessau J. The child was informed of her father’s incarceration by the mother and in the presence of her counsellor on 25 March 2013.

4. The matter was listed for a first day hearing before me on 12 September 2013. On that date, the father indicated his intention to seek orders that he spend time with the child and I listed the matter for final hearing and made orders preparing the matter for that hearing. Those orders included the preparation of a family report by Mr A, if possible. That report was prepared by Mr A and released on 24 January 2014. Although the father represented himself at that hearing shortly thereafter John D Snodgrass and Associates filed a notice of address for service on behalf of the father.

5. The matter was listed for telephone mention before me on 17 December 2013. Notwithstanding my earlier orders the father had not complied with my directions for the filing of documents and I therefore extended the time for filing, with the father to file his amended initiating application and his affidavit sworn 6 November 2013 by 20 December 2013. As a result, the time for the mother to file answering material was extended to 21 January 2014.

6. On 23 December 2013 the father filed an amended initiating application where he sought the following final orders:

   1.   That the Child [E] born … 2000, live with the Respondent Mother.

   2.   That the Applicant Father spend time and communicate with the child every second Sunday at and between such times as permitted by the Correctional Facility where the Father may be held from time to time.

   3.   That the Father be entitled to obtain information from the Childs (sic) doctors, counsellors, health professionals and school and the Mother do acts [to] facilitate this and keep the Father informed at all times [of the] contact details for these professionals.

   4.   The Applicant Father have leave to file [a] Further Amended Initiating Application upon release of the Family Report.

7. On 4 February 2014 the father’s then solicitor, John Snodgrass, attempted to file a notice of withdrawal. Although it was not accepted for filing as it was not the appropriate form, I listed the matter for mention before me and on 5 February 2014 I gave leave to Mr Snodgrass to withdraw and made the necessary orders to facilitate the father’s attendance at the hearing.

8. The father then represented himself at the hearing before me.

9. At the commencement of the hearing, the father relied upon the following documents:

   (i)his amended initiating application filed 23 December 2013; and

   (ii)his affidavit filed 23 December 2013.

10. The mother relied upon the following documents:

    (i)her amended response to initiating application filed 27 August 2013;

    (ii)her affidavit filed 24 October 2013;

    (iii)her affidavit filed 24 January 2014;

    (iv)family report of Mr A dated 31 August 2009;

    (v)family report of Mr A dated 24 January 2014;

    (vi)reasons for sentencing in the father’s criminal trial dated … 2009; and

    (vii)her outline of case document filed 5 February 2014.

11. The Independent Children’s Lawyer filed a case information document on 5 February 2014 containing a detailed minute of orders sought and a chronology of relevant events.

12. The father gave evidence and was cross-examined. After the luncheon adjournment and immediately prior to the commencement of the mother’s case the father indicated that he was considering withdrawing his amended initiating application. I explained to the father that if he did so that the orders made by Dessau J on 17 September 2009 would remain in force. I also explained that the orders sought by the mother in her amended response were still on foot and that if he did not consent to those orders then he could contest those orders, which would include him having the opportunity to cross-examine both the mother and the family consultant in relation to the outstanding issues, but that if he did not do so then their evidence would be uncontested and those matters would be determined on the basis of that uncontested evidence.

13. I adjourned the Court to give the father the opportunity to consider what he wished to do and to speak to Counsel for the Independent Children’s Lawyer. When the hearing resumed the father advised he was seeking leave to withdraw his application and that although he did not consent to the orders sought by the mother in accordance with the detailed minute of orders prepared by the Independent Children’s Lawyer he did not oppose the Court making orders in those terms, and accordingly I made the orders sought by the wife, reserving my reasons.

The orders sought by the mother

1. The orders sought by the mother fall into three main categories. The orders she seeks are parenting orders and in those circumstances the paramount consideration is the best interests of the child. Although the issues in this case are limited, in determining what is in the child’s best interests, I must consider the primary and additional considerations set out in s 60CC of the Family Law Act 1975 (Cth) to the extent that they are relevant for the purposes of the decisions I must make.

2. The first of those three categories of orders sought by the mother are the orders that the father not initiate any form of electronic communication or contact with the child or use any form of social media as a means of contacting the child. The proposed orders in my view simply identify a particular method of possible communication and are consistent with the substantive orders made by Dessau J that the father not communicate with the child.

3. It was clear from the father’s evidence that it is his view that the child should be told the real facts which lead to what he says was his wrongful conviction. I am satisfied that he had little or no insight into the likely effect this might have upon the child and that his application was motivated by his own needs rather than those of the child. This is consistent with the evidence of Mr A. It was Mr A’s opinion that in view of the father’s beliefs about his conviction and appeal prospects “there is a significant risk that [the child] would become confused and troubled by information which has been provided to her which conflicts with the current reality.” It was Mr A’s opinion that the child spending time or communicating with her father, and I include in this any attempts that might be made by the father or by other family members or friends on his behalf to communicate with or contact the child using social media in order to inform the child of the father’s position, would, as stated by Mr A “be entirely confusing, and potentially compound any mental health issues for [the child], in the absence of [the father] being successful with an appeal.”

4. In view of the strongly held views of the child and the recommendations of Mr A, I am satisfied that it would be in the child’s best interests to make the orders sought by the mother.

5. The second category of orders relate to the mother’s proposal that the child’s surname be changed to her surname. It was the mother’s evidence, and as conceded by the father in cross-examination, that the child has had considerable behavioural problems. The mother deposed that the child has been involved with mental health professionals since she was five years of age.

6. The mother deposes that after the father was charged with the serious criminal offence she moved the child to a different school because the school she had been attending was only two or three streets away from the father’s home where the crime was committed and the father was known to the children and the parents of children who attended that school. The mother also deposed that she was approached and questioned by parents of children at the school following the victim’s funeral and that she would see other parents stop talking when she arrived at the school or approached them and that she was concerned that the child may overhear other parents or children talking about, or be victimised because of, what the father had done.

7. The mother deposed that at the time the child changed schools she was unhappy with her father because he had told her he was going to remarry and had stopped spending time with her, and that the child asked to use her mother’s surname for her enrolment. When the child started high school she was again enrolled using the mother’s surname, however it was the mother’s evidence that by the time the child completes Year 9 she will be required for the purposes of the Victorian Certificate of Education to use the surname as it appears on her birth certificate.

8. The child is now aware that the father has been convicted of a serious criminal offence and has some knowledge of the circumstances of the offence. The mother deposed that the child gets upset and angry when her real name is called out when she attends medical appointments and has told the mother that she does not want to open a bank account because she does not want her father’s surname on it. This is consistent with the evidence of Mr A that during the family report interview the child said, “I just don’t want to be known as the girl whose father [committed that offence]”.

9. It was the father’s case that the child’s views about him and her wish not to see him had been influenced by “the negativity of those around her” and, in particular, the mother’s views, although he conceded that she was a good mother. When cross-examined about this issue, although the father did concede that there might be some negative effects for the child if her peer group were to become aware of her relationship to him, it was nonetheless his position that the child should retain his surname because of the relief and gratification that she would feel once he proved his innocence. The father said as follows:

   Well the name is going along with the actual father … because if the father then gets proved innocent, wouldn’t you feel bad that you’ve just crapped all over his name and not used his name?

10. The father’s evidence was that he has not, as at the date of the hearing before me, lodged a further appeal against his conviction. The appeal process, that is assuming that the father does appeal, is likely to be lengthy and even if that appeal were to succeed it is not clear how that would impact upon the child given her strongly held views and the history of this matter.

11. The father demonstrated little or no insight into or ability to reflect upon the child’s needs and seemed unmoved by the child’s statement to Mr A that if the father “cares about me he’ll let me change my name”. I am satisfied that in every respect the father was more concerned about his own needs and making a point than the needs of the child.

12. In his report, Mr A said as follows:

    It was apparent by the strength of feeling that [the child] has thought about the material conveyed to her by her psychologist, and was not simply repeating other’s views in this respect. Her moral judgement about her father’s actions, [its] consequences for others and for herself, was consistent with her stage of development … In this respect [the child] impressed as having pondered about the issues and sought to distance herself from the perpetrator.

13. I am satisfied on the basis of the evidence before me that the views the child expresses are her own and that they are soundly based and, as recommended by Mr A, they should be given significant weight in determining whether the mother should be permitted to change the child’s surname.

14. The child is now of an age where both she and her peers have ready access to the internet and I accept the mother’s evidence that a search of the father’s name is likely to produce details of the father’s crimes. I  am satisfied that that information and knowledge has the potential to significantly damage the child’s relationship with her peers and to damage what appears to be her somewhat fragile emotional security. It is on this basis, having regard to the best interests of the child, that I acceded to the mother’s application and made the orders she sought and as proposed by the Independent Children’s Lawyer.

1. The mother also sought orders permitting her to obtain a passport for the child notwithstanding that the father has not consented to same. The mother deposed that she would like to be able to travel overseas with the child in the future when she has the financial ability to do so. She also told Mr A that although she had no immediate plans to travel she wanted to have the ability to take advantage of travel opportunities that might arise.

   The father did not depose to any specific concerns with respect to the issue of a passport for the child, however he was reported by Mr A to have said he wanted the child to be well-travelled, that he would support her going on educational trips, but that he did not want the child travelling to destinations such as Somalia or going on what he described as “crazy boyfriend type trips”. There is no evidence before me which would support a finding that the mother would not, in making decisions about overseas travel, act in the best interests of the child.

2. Pursuant to the orders of Dessau J the mother has sole parental responsibility for the child and does not, on that basis, require the father’s signature in order to obtain a passport for the child. However, it was submitted that the order sought by the mother would facilitate the mother obtaining a passport for the child. Although there may, strictly speaking, be no need for the orders sought by the mother, to avoid any issues that might arise and in order to facilitate her obtaining a passport for the child I made the orders she sought.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 28 March 2014.

Associate: 

Date:  24 March 2014