Manellis & Andreou
[2023] FedCFamC1F 189
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Manellis & Andreou [2023] FedCFamC1F 189
File number: PAC 2845 of 2021 Judgment of: REES J Date of judgment: 24 March 2023 Catchwords: FAMILY LAW – INTERIM PARENTING - Where the mother seeks to vary existing orders for supervised time – where the mother seeks to remove requirement for supervision and increase time – where the mother has not availed herself of the time allowed – where concerns giving rise to supervision remain
FAMILY LAW – COSTS – where the applicant was wholly unsuccessful in her application – Applicant to pay the respondent’s costs
Legislation: Family Law Act 1975 (Cth) s 117(2A) Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 23 March 2023 Place: Sydney Applicant: Litigant in Person Solicitor for the Respondent: Mr Hawach, Matthews Folbigg Pty Ltd ORDERS
PAC 2845 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANDREOU
Applicant
AND: MR MANELLIS
Respondent
order made by:
REES J
DATE OF ORDER:
24 March 2023
THE COURT ORDERS:
1.That the amended application filed by the mother on 16 December 2022 is dismissed.
2.That within two months of the date of this order, the mother pay the father’s costs in the sum of $1,000.
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 Manellis & Andreou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Andreou (“the mother”) and Mr Manellis (“the father”) are the separated parents of three children, Y born 2011; X born 2014 and Z born 2017 (“the children”).
There are proceedings before the court in relation to both parenting and property.
The children presently live with the father and spend supervised time with the mother, pursuant to orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 February 2022. The reasons for judgement delivered on that day set out clearly the basis for the decision that the mother’s time be supervised. The judgement records:
147The risks to the children in the Father’s care must then be balanced against the risk of harm in the Mother’s care. I am satisfied that the children are at risk of harm in the Mother’s care. This risk of harm is multi-layered. The children are at risk of continuing to witness the parent’s conflict and the Mother’s repeated allegations and subsequent interactions with the Police with respect to the Father. They are at risk of harm that the Mother will continue to involve them in these proceedings. They are at risk of harm that the Mother will not, despite any Orders made by the Court, facilitate a meaningful relationship between the children and the Father as she is convinced that they are at risk of harm in the Father’s care. The Mother’s mental health is a serious issue that will be a matter for determination at the final Trial.
148I am satisfied that, balancing the competing allegations of risk of harm in each party’s household as against the benefit the children will obtain from a continuing and meaningful relationship with each of the parties that the best interests of the children are met by them living with the Father. Whilst this is a significant change in circumstances for them, especially on an interim basis, I am satisfied that this is the only method whereby the children will be able to continue their relationship with their Father.
The orders provided for the children to live with the father and to have supervised contact with the mother, failing agreement, each Sunday between 10.00 am and 5.00 pm.
The mother appealed against the orders made on 4 February 2022 but her appeal was dismissed.
On 15 July 2022, orders were made for the appointment of a single expert, Dr AB to prepare a report for the parenting proceedings.
On 12 December 2022, a Judicial Registrar made the following notations:
THE COURT NOTES THAT:
...
B.The joint letter of instructions to [Dr AB], who is the single expert appointed to prepare a single expert family report, is in principal agreed to by the parties and the Independent Children’s Lawyer is in the process of updating the documents to be provided.
C.The outstanding issue with regard to the obtaining of a single expert family report is the payment of each parties’ fees to [Dr AB], who requires a half payment from each of the parties prior to the appointments occurring
…
(As per the original)
The mother has not signed the letter of instruction to the single expert and thus the report has not been prepared and there is no evidence before the court in relation to the concerns raised in the reasons for judgement of 4 February 2022.
Before me, the mother seeks to vary the orders made on 4 February 2022 by removing the requirement for supervision and by increasing the time the children spend with her to include every second weekend from Friday afternoon until Monday morning and each Tuesday and Thursday from after school until 8pm.
The mother relies on an affidavit sworn by her on 20 December 2022.
The father opposes the mother’s application and relies on an affidavit sworn by him on 7 December 2022.
Annexed to the mother’s affidavit are the reports of the supervised contact from 14 April 2022 until 11 December 2022. The mother has not exercised her right to spend time with the children from 10am until 5pm on one day each week. The dates and times the mother has had supervised contact are set out below:
14 April 2022 4 hours
20 April 2022 3 hours
15 May 2022 4 hours
22 May 2022 4 hours
29 May 2022 4 hours and 10 minutes
5 June 2022 4 hours and 30 minutes
12 June 2022 4 hours and 30 minutes
25 June 2022 5 hours
26 June 2022 4 hours
15 July 2022 4 hours
22 July 2022 3 hours
21 August 2022 4 hours
26 August 2022 4 hours
2 September 2022 4 hours
18 September 2022 7 hours and 45 minutes
30 September 2022 4 hours
5 October 2022 2 hours
18 October 2022 3 hours
11 November 2022 4 hours
20 November 2022 4 hours
2 December 2022 4 hours
11 December 2022 4 hours
Between those dates, the mother spent time with the children on 22 occasions, whereas the orders provided for 35 supervised visits.
In support of her application, the mother relied on the fact that an Apprehended Domestic Violence Order (“ADVO”) was made against the father in mid-2022. However, the father deposed that, in late 2022 his appeal against that order was upheld. The application for the ADVO had been privately prosecuted by the mother and not by the police.
The mother did not mention, in her affidavit, the fact that in mid-2020, an ADVO was made against her for the protection of the father for a period of two years.
I do not propose to grant the mother’s application to extend the periods of time with the children, in circumstances where she has not availed herself of the time she was allowed.
Most relevantly, the mother has taken no steps to address the matters of concern which led to the making of the supervision orders and, significantly, has not done that which was necessary to allow the report of the single expert to be prepared. That report will, in due course, address those issues.
COSTS
The application for costs is governed by the provisions of s117(2A) of the Family Law Act 1975 (Cth) which provides:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
On the limited financial information available to me, it appears that the parties are shareholders and directors of a company which runs three businesses and they own a home. There is a current order that the wife pay spousal maintenance to the husband from which I infer that her financial position is superior to his.
Since these proceedings were commenced by the father filing an Initiating Application on 26 May 2021, the mother has filed 12 interim applications, two of which have been summarily dismissed. The matter has been before the court on 31 occasions. This is the fifth judgement that has been delivered.
The mother has been wholly unsuccessful in this application.
It is appropriate that she pay the father’s costs. The solicitor for the father estimates that he has spent six hours of professional time in relation to this application. Costs will be awarded in the sum of $1,000.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 24 March 2023
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