FAMILY COURT OF AUSTRALIA
Michel & Stathis [2021] FamCA 215
File number(s): SYC 7024 of 2019 Judgment of: HARPER J Date of judgment: 20 April 2021 Catchwords: FAMILY LAW – CHILDREN – Where final hearing adjourned by reason of father propounding new case – Where court time used for interim parenting hearing – Where children live with the father and spend day time with the mother – Where interim orders sought by mother to increased and overnight time with children – Allegations of alienation by the father and risk of harm to the children – Where children should begin spending overnight time with the mother – Where parents must engage in family therapy prior to final hearing – Where orders are to be explained by the Independent Children’s Lawyer Legislation: Family Law Act1975 (Cth) ss 10G, 60CA, 60CC, 61DA, 61DA(2), 61DA(3), 61DA(4), 65D(1), 65DAA, 65DAA(1), 65DAB, 65DAC, 79(4)(e) Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198;
Champness & Hanson (2009) FLC 93-407
Cowling & Cowling (1998) FLC 92-801
Cox v Pedrana (2013) 48 Fam LR 651
Crouper & Mitchell [2014] FAMCAFC 246
Damiani & Damiani (No 2) [2009] FamCAFC 215
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
In the Marriage of A (1998) FLC 92-800
Jollie & Dysart [2014] FamCAFC 140
Lovett & McGregor (2019) FLC 93-935
Maldera & Orbel (2014) 52 Fam LR 24
Marvel & Marvel [2010] 43 Fam LR 348
Marzoski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Napier & Hepburn (2006) FLC ¶93-303
Sahrawi & Hadrami [2018] FamCAFC 170
Salah & Salah (2016) FLC 93-713
Sigley & Evor (2011) 44 Fam LR 439
Stott & Holgar [2017] FamCAFC 152
Tibb & Sheehan (2018) 58 Fam LR 351
Number of paragraphs: 130 Date of hearing: 24 November 2020 – 25 November 2020 Place: Sydney Counsel for the Applicant: Mr Johnston Solicitor for the Applicant: Santone Lawyers Counsel for the Respondent: Mr Hodgson Solicitor for the Respondent: Mills Oakley Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Applicant: Sarah Bevan Family Lawyers ORDERS
SYC 7024 of 2019 BETWEEN: MR MICHEL
ApplicantAND: MS STATHIS
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 APRIL 2021
IT IS ORDERED:
(1)That orders of 20 November 2019 be discharged.
(2)That the children live with the father.
(3)That the children spend time with the mother as follows:
(a)During school terms, and commencing on the second weekend after the date of these orders:
(i)Each alternate weekend from after school on Friday until 5.00 pm on Sunday, and
(ii)Each Wednesday from after school until 7.00 pm.
(b)During school holiday periods:
(i)Each alternate weekend from 3.00 pm on Thursday until 7.00 pm on the following Monday, and
(ii)Each Wednesday from 3.00 pm until 7.00 pm; and
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- AGLC
- Michel & Stathis [2021] FamCA 215
- Case
- [2021] FamCA 215
- Decision Date
CaseChat Overview and Summary
The court was required to determine the interim parenting arrangements for the children, specifically whether the children should commence spending overnight time with the mother. This determination involved assessing the children's best interests, including the benefit of a meaningful relationship with both parents and the need to protect them from harm, as stipulated by section 60CC of the *Family Law Act 1975* (Cth). The court also needed to consider the impact of the parents' conflict on the children and the allegations of parental alienation.
Harper J reasoned that the children would benefit from a meaningful relationship with both parents, acknowledging that this relationship was currently compromised, particularly with the mother, due to resistance from the children and the parents' bitter conflict. The court found that it was in the children's best interests for them to begin spending overnight time with the mother, subject to certain conditions. These conditions included the parents engaging in family therapy, with the Independent Children's Lawyer explaining the orders to the children and providing relevant documents to the therapist. The court also imposed orders restraining the parents from discussing the proceedings or speaking negatively about the other parent in the children's presence.
The court ordered that the children live with the father but significantly increased the mother's time with them, including alternate weekends and mid-week time, with specific provisions for school holidays and public holidays. The mother's previous application was dismissed. The proceedings were provisionally listed for a final hearing, with a case management hearing scheduled and leave granted for the Independent Children's Lawyer to apply to relist the proceedings on short notice. The court also outlined a dispute resolution process for any future disagreements regarding the orders.
Orders
Orders of the court
SYC 7024 of 2019
BETWEEN:
MR MICHEL
Applicant
AND:
MS STATHIS
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 APRIL 2021
IT IS ORDERED:
(1) That orders of 20 November 2019 be discharged.
(2) That the children live with the father.
(3) That the children spend time with the mother as follows:
(a) During school terms, and commencing on the second weekend after the date of these orders:
(i) Each alternate weekend from after school on Friday until 5.00 pm on Sunday, and
(ii) Each Wednesday from after school until 7.00 pm.
(b) During school holiday periods:
(i) Each alternate weekend from 3.00 pm on Thursday until 7.00 pm on the following Monday, and
(ii) Each Wednesday from 3.00 pm until 7.00 pm; and
(c) If Christmas Day does not fall on a weekend that the children are to spend time with the mother, from 10.00 am until 4.00 pm on Christmas Eve;
(d) If Mother’s Day does not fall on a weekend that the children are to spend time with the mother, on the Mother’s Day weekend, from 6.00 pm on Saturday until 6.00 pm on Sunday.
(4) In the event that Father’s Day fall on a weekend that the children are to spend time with the mother, on that weekend that time with the mother shall end at 6:00 pm on the Saturday.
(5) That for the purposes of these Orders, unless otherwise agreed between the father and the mother, changeovers shall occur:
(a) At the children’s school(s) if the changeover occurs on a school day; or
(b) For changeovers that occur at other times:
(i) The father shall deliver the children to the mother’s home at the commencement of the time they are to spend with the mother; and
(ii) The mother shall deliver the children to the father’s home at the end of the time they are spending with her.
(6) That the mother and the father shall:
a) Be restrained from:
(i) Discussing these proceedings in the hearing of or presence of the children;
(ii) Speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
(b) Take all reasonable steps to prevent any other person:
(i) Discussing these proceedings in the hearing of or presence of the children;
(ii) Speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
(7) That the mother and the father forthwith do all things necessary:
(a) To engage and participate in family therapy with the first available therapist at B Services (“the therapist”), including ensuring the attendance of the children for family therapy at such times and locations as requested by the therapist.
(b) To receive and accept guidance and recommendations from the therapist as to how to best implement Order 3 above, including any recommendations as to whether there needs to be a graduated progression to the children’s spending time with the mother and the stages of such progression.
(8) The parties may agree in writing at any time to vary the terms of Order 3 for the purpose of the children spending time with the mother in accordance with any recommendations of the therapist, noting that in the absence of agreement the parties must comply with these orders.
(9) Within 7 days of the date of these orders, the Independent Children’s Lawyer take all necessary steps to explain these orders to the children, including explaining that family therapy is to happen to help them feel more comfortable with the orders and spending time with both their parents.
(10) That leave be given to the Independent Children’s Lawyer to provide the therapist with a copy of:
(a) These Orders; and
(b) The report of Dr C dated 19 May 2020.
(11) That the proceedings are provisionally listed for final hearing on 9 November 2021 with allocated hearing time of three days.
(12) That the proceedings be listed for a Case Management Hearing at 11.30 am on 19 July 2021.
(13) That leave be granted to the Independent Children’s Lawyer to apply to relist the proceedings on five (5) days’ notice.
(14) The process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders shall be as follows:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or as agreed in writing between the parties; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
(15) Before an application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the mother or the father:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
(16) That the Application in a Case filed by the mother on 25 September 2020, as superseded by the Application in a Case handed up in Court on 24 November 2021, be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Adopting this approach, and noting I have given consideration to each of the statutory matters set forth in s 60CC, I turn to the relevant primary and additional considerations as raised by the parties in their evidence and the way they presented their cases. SECTION 60CC CONSIDERATIONSPrimary Considerations The Court must first have regard to the "primary considerations" set out in s 60CC(2) of the Act:(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying the considerations set out in s 60CC(2), the Court is to give greater weight to the consideration in paragraph (b).Section 60CC(2)(a), the benefit to the child of having a meaningful relationship with both of the child’s parents A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child: McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 (“McCall & Clark”). A “prospective” enquiry is preferred which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child: Marzoski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 at [26]; McCall & Clark at [117]-[120]; Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 (“Sigley v Evor”) at [132]-[133]. The legislation aspires to promote a ‘meaningful relationship’; it is a legal construct, not a physiological one, and it is for the Court to determine what constitutes a ‘meaningful relationship’: Sigley & Evor at [135]-[136]. In seeking to achieve a child’s best interests, ss 60CC(2)(a) directs the Court to consider “the benefit of the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors: Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 at [103]. There was no dispute that the children would benefit from a meaningful relationship with each parent. They have a meaningful relationship with both parents, but the mother seeks to enhance the children’s relationship with her by spending overnight time. The problem is that it appears Y’s relationship with the mother in particular, but X’s relationship as well, is compromised at present. There is resistance to spending time with the mother. The mother contends this is a result of a deliberate strategy by the father, to render the children’s relationship with her less meaningful. I discuss this further below under s 60CC(3)(a). The entrenched and clearly bitter conflict between the parents is also a factor which currently impinges on both parents’ relationship with the children, but especially that with the mother.Section 60CC(2)(b), the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence