Mikonos and Perez

[2010] FamCA 590

FAMILY COURT OF AUSTRALIA

MIKONOS & PEREZ [2010] FamCA 590

FAMILY LAW – CHILDREN – interim parenting – supervised spend time with 

Family Law Act1975 (Cth)

APPLICANT: Mr Mikonos

RESPONDENT: Ms Perez

FILE NUMBER: SYC 2973 of 2010

DATE DELIVERED: 28 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 24 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S. Christie

SOLICITOR FOR THE APPLICANT: McDonell Milne Toltz

COUNSEL FOR THE RESPONDENT: Mr P. Sansom

SOLICITOR FOR THE RESPONDENT: Coleman & Greig

INDEPENDENT CHILDREN’S LAWYER: STEPHEN W BELL & ASSOCIATES

Orders

1. That the children No born … April 2007 and H born … June 2009 spend time with the father for five (5) hours a day each Saturday and Sunday in Melbourne, supervised by a person agreed between the parties.

2. Until further order the mother have sole parental responsibility for the children, but in relation to any significant medical, educational or religious issues she is obliged to consult the father and provide him with an opportunity to consider the issue.

3. At all other times unless the parties otherwise agree in writing the children are to live with the mother.

4. The Court requested that the appointment of an Independent Children's Lawyer be taken up, if practicable, by Legal Aid Victoria.

5. That the proceedings be transferred to the Melbourne Registry of this Court.

6. The Court requested that the Registry Manager facilitate the transmission of the papers to the Melbourne Registry and that the Registry Manager of the Melbourne Registry notify the parties of the first date of the Less Adversarial Trial at the appropriate time.

7. That the operation of the order in relation to the transfer of the proceedings to Melbourne Registry be stayed for a period of fourteen (14) days from today’s date or pending the determination of any Review filed within that time.

8. That the father file and serve a Response to the Application for Financial Orders and a Financial Statement within twenty-eight (28) days from today’s date.

IT IS NOTED that publication of this judgment under the pseudonym Mikonos & Perez is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2973 of 2010

MR MIKONOS

Applicant

And

MS PEREZ

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings.  The matter came before me on 24 June 2010 and we ran out of time. I told the parties that I would make a decision and give reasons for judgment today.  I excused the parties and their legal representatives from attendance. 

2. As to the competing proposals:  The father seeks that the parties’ children spend time with him in New South Wales on Wednesdays from 10 am to 6 pm;  Saturdays, 10 am to 6 pm in one week;  and then in the next week, Thursday, and Sunday, from 10 am to 6 pm. He seeks that that pattern repeat thereafter. He seeks that otherwise, the children live with the mother;  that she be required to cause the children to live within 10 kilometres of the home the parties lived in at E;  that he provide $500 a week rental, on a monthly basis, and pay a rental bond, and that he pay the mother $250 a week for living expenses. He plans to provide those moneys by borrowing from his sister. 

3. The mother's proposal is that that she be relieved of an undertaking she gave between the parties to return the children to live in Sydney;  that she have sole parental responsibility for the children;  that they live with her;  that the children spend time with the father for four or five hours on either a Saturday or a  Sunday of each alternate weekend, in Melbourne, that time to be supervised by one of her sisters;  and in the event that the court orders that the children have to return to live in Sydney, pending a final hearing, she seeks that the father pay her maintenance at the rate of $900 a week.

4. There were some other orders sought, but they are the main orders. I will not order the mother to return to live in Sydney. 

5. The legislation's reasonably complicated now, and decision-making starts with decisions about parental responsibility, and there are presumptions about that, and then things that lead from a decision to be made, or a decision that is made, for equal shared parental responsibility. This is not a case where it would be possible for the court to make an order for equal shared parental responsibility, at this stage.

6. As is said in one of the case outline documents, the parties agree about their birth dates and the ages of their children, and that's just about all. At the moment the parents live in different cities, and to say the least, they have very different views about a number of issues. It would not be practicable for them to exercise any sort of shared parental responsibility, at this stage.  There are allegations of violence, which would rebut the presumption, and as the Full Court has, relatively recently said, the Court should not press to make an order about equal shared parental responsibility in an interim proceeding, in the absence of sensible material.

7. The legislation sets out what is taken into account in identifying what is in a child's best interests. Decisions about children are to be made taking those matters into account. Section 60CC has primary and additional considerations, the primary considerations focus on the importance of a meaningful relationship between a parent and a child, and the need to protect a child from harm that may come from abuse.  Then there are additional considerations, and I'll go through those in a while. 

8. As to the background of the case. The father is 37. He says, in his documents that he is a logistics manager.  I don't know that that is correct. As I understand his evidence is that he is establishing a services business.

9. The mother is 40 years of age, and she is a designer. Again, I don’t think she is doing much designing at the moment.  They started to live together in February 2005, and the separated under one roof on 2 February 2010. At all relevant times, they lived in Sydney.  They have two children, N, born in April 2007 and he is now 3 years of age. H was born in June 2009 and he is barely one year of age.

10. There is a dispute about the chronology of events but the main issues include whether the mother's move from Sydney to Melbourne, in about April of this year, was unilateral;  whether it is in the best interests of the children to be required to move back to Sydney; That requires a decision about whether there can be a meaningful relationship between the father and the children with them living in Melbourne and the father living in Sydney.  Is it practicable for the mother to return to live in Sydney?  Will the children be safe and well cared for if the mother is required to cause them to live in Sydney?  Like most matters that come up in the duty list, the tensions between the primary considerations are often the major focus of the court. 

11. The mother's case, which is that the children will not be as safe and secure if they're in Sydney. She does not say, baldly, ‘my parenting would be compromised if I'm required to live in Sydney’. Instead, she puts the case the other way.  She relies on family support in Melbourne, which she doesn't have in Sydney.  She says she is afraid of the environment of violence that she experienced during the marriage, and she would feel protected from that if she was in Melbourne and more exposed if she was in Sydney. The mother does not say that she would not be able to adequately parent the children, or properly care for them, or protect them if she was in Sydney. Those propositions are heavily inferred, in her case. 

12. Balancing those considerations are the impact on the father’s relationship with the children if they remain in Melbourne. Would it be possible for the father to have a meaningful relationship with the children if he flew down from Sydney on a weekly or fortnightly basis. There is the artificiality of him spending time with the children in a motel room, or whatever, rather than in some family enclave in Sydney, with the support of his family. 

13. It is the mother’s evidence that, although she didn't always bring it to the attention of the authorities, the father has been violent to her and to the children. 

14. As to the additional considerations; there is the views of the children, and the extent to which factors such as their age and maturity, would go to the weight those views are given. Here the children are too young to express a meaningful view.  As to the nature of the relationship between the children, and the parents, and others – it is an agreed fact that the children have a loving relationship with both parents.  It follows, from the background facts, that it's likely that the mother is the primary attachment figure. With the discussion about the mother travelling to Melbourne, which came up in the shadow of separation this year; there was never a suggestion the children would not travel with her, for example. H is still being breast fed.  In those circumstances it is likely that the mother is the primary attachment figure.  That isn't to say that the father does not love the children or that they don't love him.  As to the willingness and ability of the parties to facilitate a relationship, I can't make a finding about that.  The mother has made some arrangements for the father to see the children in Melbourne on occasions.

15. The father would say that the trip to Melbourne was an act calculated to put some distance between the father and the rest of the family. It is not practicable to make a decision as to that issue.

16. As to the likely effect of any changes on the children, that is complicated.  The mother caused a change in the children's life when she took the children to Melbourne.  She did that on a temporary basis, and we know that because she gave an undertaking between the parties that she would return the children to live in Sydney. The dialogue between the parties, reported in the evidence, is to the effect that she was planning to go for two weeks, or four weeks, or until 5 July but never did she say to the father, she wanted to move to Melbourne permanently.

17. The mother would say that in the heat of separation, he said some things to her from which she divined a desire that she and the children be out of his life forever. People say things in the heat of separation, that they don't mean. For that reason the issue of the return of the children to Sydney is not really about a change but about restoring what was.

18. The mother says that she has a family support system in Melbourne and none in Sydney. She says that she would feel exposed to the father’s controlling behaviour if she was obliged to return. She says that she would feel exposed to the risk of physical abuse. The mother treads a careful path in her case, because she has done some things inconsistent with the fears she expresses.  There was an apprehended violence order, that meant that the father could not come into her home, and she allowed him back in. The mother says that the father's sister would not be an appropriate supervisor of the father's time with the children. On the other hand she earlier had her solicitor write a letter nominating that same sister as an appropriate supervisor. The mother’s case is complicated but as I understand it she says that, under the control of or near the influence of the father, she has not been able to act consistently with her soundly held fears in relation to the father's behaviour and conduct.

19. As to practical difficulty and expense, I'll say some more about that later.  That's a reasonably complicated issue. 

20. As to the attitude to the children, and to the responsibilities of parenthood, I can't really make a finding about those things.  There are a number of serious allegations made. It is the mother’s case that she left the children in harm's way, on occasions, by not breaking things off with the father sooner and that the children were exposed to his violence towards her. I am asked to infer that there may be an explanation for that, in that she was a victim of controlling and violent behaviour, and there shouldn't be any criticism of her inconsistent conduct.  There is a real issue about the father's attitude to the children.  The mother's evidence is that he's said things consistent with - as I say, "Go to Melbourne and stay there forever" - consistent with the idea that he doesn't want to see the children again.

21. And yet, he's pressed these proceedings, and there can be no criticism of him for that.  He's taken the opportunity to travel to Melbourne to see the children.  So the truth of it is, I simply do not know what attitude the parents have to the children, and to their responsibilities. 

22. Family violence is a central issue in the proceedings, and I am to take into account family violence and orders in relation to family violence.

23. Coming to the key issues: The mother’s move to Melbourne was unilateral. The mother does not assert that on the day she drove the children to Melbourne, she had the father's consent to move there indefinitely. Indeed, she gave an undertaking to him, to return. There is disputed evidence about what led up to the move, but there is no suggestion that the father agreed or acquiesced to a permanent move at the time of the travel, or since. That is not the end of the matter, of course.  The mother's case is that the move was necessary or justified, on the basis of her fears of domestic violence;  and on the basis of her lack of support in Sydney and available support in Melbourne.

24. Can there be a meaningful relationship between the father and the children if the children live in Melbourne?  I think there can.  Melbourne is not on the other side of the planet. The problem is that the children are young, and in the normal course they should have short periods of time with the father but very regularly. At their ages that would not normally be overnight, particularly in a high conflict situation. The problem is that with the children in Melbourne and the father in Sydney, most of the opportunities for spontaneous interaction are gone, and even with cheap airfares, there is a cost associated with that time. There is no evidence that the father has any family or other support in Melbourne, and so he would need to establish a base in Melbourne from which or at which time could be spent.

25. These are young children and if the father was to have them all day, there needs to be facilities for the children to have a sleep. In any event they cannot sensibly spend eight hours in a park in Melbourne. He would need to have something more than a motel room, available, to have a meaningful opportunity to spend time with the children. There will be a cost associated with that. Even then the Melbourne base is not likely to be familiar or as comfortable and as warm a venue as would be available here. In Sydney there is the opportunity to involve members of his family.

26. Therefore the Melbourne option is far from ideal and it would be hard for the father, I would have thought, to see the children more than once a week. As to that, I am not sure about his availability.  He says that he left his paid employment in November 2009, and set up a services business under the auspices of P Proprietary Limited. But the evidence is that the business has no income, and, in fact, according to the BAS (s)tatement to 31 March 2010, it had no sales, assets or liabilities. On that basis I am not sure what impost that business has on his time.  It would be very disappointing, if he'd been setting up a business since November 2009, and as at June 2010, there were still no sales, no turnover, no debts and no assets. If that were the case it may be practicable for him to get away from such a business on a reasonably flexible basis.

27. If his time is to be supervised then there is the issue of whether he would take his own supervisors with him, if they were suitable and that would involve even more cost.

28. Is it practicable for the mother to return to live in Sydney? That too is a complicated question. The mother says that she would need something like $900 a week.  There has not been an opportunity to explore the parties' financial circumstances. The mother she says, together with her income of $200-odd a week by way of a Centrelink benefit, and $40-odd a week in child support, $900 would keep the wolf from the door and enable her to obtain an appropriate rental property. I note that despite the forensic advantage it would give the father in this aspect of the case, he does not offer her exclusive occupation of the home in which the family lived. It would be the obvious solution, from his point of view, to the accommodation element of the barriers to the mother returning the children to Sydney. The mother says that the father is controlling and manipulative, and focussed very much on financial issues between the parties. That could be the explanation for his stance on this issue.

29. On the other hand the mother does not want to live in that home. She wants to stay in Melbourne and if she has to come to Sydney she does not seek permission to occupy the former family home. If she has to come, she proposes to stay in rental accommodation. Thus the occupation of the former family home is not a substantive issue.

30. The other complication with the financial support offered by the father is that he proposes to borrow money from his sister. That made me a bit nervous, and I asked his representative whether that meant in effect that a debt would be established in the mother's name, for the money paid for her own support. As I understand the response there would be a debt, and the issue of who was responsible for it, would be an issue for another day. Therefore, it is not a case of the father's saying "come up and I'll pay you maintenance", or "I'll pay for support and there will be never any financial consequence for you arising out of it". In effect the mother may be required to fund her own support from her property settlement. It is trite to say that a party cannot be required to pay their own maintenance or child support.

31. Would the children be safe and well cared for if the mother brought the children back to Sydney?  That is a complicated question. The mother's case is really to be inferred from the facts. There is not much in the way of independent or objective evidence. The mother says that there was substantial family violence over the years. She refers to isolated incidents which did not come to official attention.

32. As to any independent corroboration of the mother’s evidence, the best we have is some notes from 2007, 2008, 2009 and 2010, from a Ms A, a counsellor at the C Early Childhood Centre. The earlier notes predate separation and it is unlikely that they represent false reports made by the mother for forensic advantage. For the purposes of an interim hearing, I think that is second cousin to some corroboration. It would be very prescient of the mother to make reports consistent with her current allegations, in 2007, at a time when there was no suggestion of separation or court proceedings, just so that if her marriage broke down in three years, she would be able to refer to those notes in support of her argument.

33. Although I cannot make a finding of fact about disputed issues on the papers without independent material, it would be safe to say that these allegations cannot be dismissed out of hand. The mother says that there was an incident in 2005, during which the father behaved in a very intemperate and violent way. She also cited that same incident to the police, in support of police action this year. She says that in 2007, the father was upset that she was taking too long to get ready to go out. She hid in the bathroom, and he punched the door of the bathroom. She says that in October/November 2007, the parties had a fight about money. She says he covered her mouth; sat on her; pushed her into a wall; and slapped the left side of her face, causing her head to hit the wall. She says that N was screaming and that she slept on the floor of his room that night. She says that in August 2009, the father repeatedly told her to "go and fuck herself" in the presence of the three year old child.  When she asked him not to use that sort of language in the child's presence, he repeated it. She says that on 26 January 2010, he screamed at her face. She says N was watching and he covered his ears with his hands. The mother says that during this incident she said something like, she didn't know why she was putting up with it. The mother says that from the time of N’s birth, the father was under financial pressure, and he continually put the mother down.

1. The mother says that she spent time trying to show the father that she was good enough, but that he said things such as, "I told you to fuck off a long time ago.  Why didn't you go then?"   She says in late December 2009, or early January 2010, they were at the local Shopping Centre.  The father said to N, "Pick up your toys."  N said, "Not now, pop", or "I'll do it when I get home."  The father said, "What's wrong with you?  Can't you bend down?", and then he pushed N on the top of the head, towards the floor.  He didn't fall over. Mother thought the father was being too rough. She says that N was then two and a-half years of age, that he was crying and scared. The mother says that she could hear that the father was angry when he was speaking to N, and that he sounded aggressive. The mother says that on 16 March 2010 the family was at home. She says the father told N that he could not go outside, where the mother was. N sat on the lounge, and swung a punch at the father. In her statement to the police the mother said she did not think that the punch connected, but she went on: It did actually connect, because there was a red mark above the father's eye.

   She says that the father stood up, grabbed N with his right arm on the left wrist, and had him dangling in the air. The statement goes on:

   [The father] is six foot tall, so he was in the air.  He threw him across the top of the lounge.  [N] landed with his stomach over the top edge of the lounge, and [the father] hit him three times on his bottom.  Hit him very hard.  At the time, [N] was only wearing knickers.  He'd just been to the toilet and hadn't put his shorts on.  He hit him with an open hand -

   I think it should say -

   with a slapping motion.  It was almost like a game.  [The father] would come home happy, and then all of a sudden, he clicked.  [The father] grabbed him with both hands, and dropped him into the corner.

   The statement goes on:

   I could see [N] was shaking.  He just looked at me and quietly said, "Mummy".  [The father] had walked out to get something from the car.  I cuddled [N] and told him that it was wrong to hit papa like that, but I told him that he should never have been hit either.  [The father] walked in whilst I was cuddling him.  [The father] said, "Get away from him.  Just leave him."  I felt as though [the father] was threatening me to get away from him, yelling at me, and he was speaking to me in an aggressive manner.  I was in shock.  I was shocked at how hard he'd been hitting [N].  After a while, [N] fell asleep watching TV with [the father].  I picked him up, took him to bed.  I saw that [N] had red marks on his bottom.  This was not the first time that [the father] had hit [N] that hard.  I think [the father] believes that he needs to toughen [N] up by hitting him, and by not allowing him to cry.  He picks on [N] all the time.  I've not reported any of this to the police because I'm frightened that if I do, [the father] would resort to some sort of physical abuse towards me.  I've been told by his parents not to say anything to anyone about what has happened.  His father said to me before, that if anyone tried to take his grandchildren away from them, whether it be me or someone else, he would have us "finished".  I knew that he meant he would pay someone to come and get -

   I think she means, rid of me -

   and kill me.

2. That statement was made at the W Police Station on 18 March 2010 and it is exhibit 3 in the proceedings before me. There are many other detailed allegations in the mother's affidavit. There are other events of the apparent seriousness of the 16 March 2020 but the alleged incidents were sporadic. I understand the mother to be that there was only one occasion when she was struck by the father. 

3. The father's affidavit goes through the allegations in some detail and he denies most of the incidents.  He concedes some, but his evidence is that the conflict was mutually initiated, or it was initiated by the mother.

4. I am to have regard to the importance of there being a meaningful relationship between the father and the children. How meaningful depends to some extent on the father's motivation. For the purposes of today I have to assume that there is a meaningful relationship to be had between the children and the father. The other primary consideration is the need to protect the children from harm. The evidence about the allegations is not satisfactory. The mother has acted inconsistently with the allegations. She has not reported incidents when she should have reported them. On her own case, she has not been able to protect the children from the father over some years. Despite the inconsistencies the allegations represent a risk to the children of substantial proportions, and one that I have to accommodate in the orders I make. Just stopping there, that means that the father's time with the children needs to be supervised for the time being.

5. Turning then to whether the mother should be required to bring the children back to Sydney. The mother hasn't acted consistently with her allegations. She does not spell out a case to the effect that her parenting would be adversely affected if she was required to come back to live in Sydney. It is unfair that the father has to face an argument that is inferred from her material, rather than something expressed.

6. There are problems with each of the proposals.  The fact that the mother's move was unilateral would suggest that she should return with the children.  One of the few things we can do on an interim basis is try and put things back the way they were, and that would argue for the mother being required to bring the children back to Sydney, if that were practicable.

7. As I have set out above, if the children are down in Melbourne, there will be an artificiality about the father's time. There cannot be much spontaneity about the father's time.  The children are very young, and have to see their father on a regular basis. On the other hand, their mother has to have somewhere appropriate to live. She has to be safe.  She has to be able to parent the children properly. Even now, as I say, he doesn't offer the obvious accommodation to the mother and in the weeks leading up to this hearing, he didn't offer that accommodation to the mother.  And that was an obvious step he could have taken.

8. As to controlling behaviour, it is a very small thing but the father agrees that he chipped this mother about her inability to keep the house clean when she was struggling with these two young children. Obviously, a more sincere gesture might have been to give her a hand with that. It may be that there is something in the mother's case, about him putting her down. But, as I say, it's not a matter of significance.

9. In deciding to allow the mother to remain in Melbourne the competing issues are the risks associated with the impact on the children of domestic violence, and the fear of domestic violence are greater than the costs and inconvenience of the father spending time with the children in Melbourne. The latter problems are an inconvenience, but no harm will come to anyone. No harm will come to the integrity of a loving relationship between the father and the children, if he can get down on a weekly basis. On the other hand there are real risks to the children if the mother is isolated and afraid. Her own case suggests that she has trouble standing independent from the father, even to the point of inviting him to come to the home in breach of an apprehended violence order. Further the apprehended violence issues are before the state courts.

10. The key issue having been decided it is not critical, how we arrange the hours.  I need to put in place a framework for the time to be spent between the father and the children, in Melbourne.  I would hope that the parties would be able to work with each other around flights, and so on.  These are young children.  I think it's important that they spend time with their father. Their time has to be supervised.  Despite the problems that occurred with the mother saying, at one point, the father’s sister was acceptable, and later not, I think the safest course is if I make an order that the supervisor be someone agreed between the parties.

11. That gives the mother room to agree to some other proposition put on behalf of the father. I should save said that the children are represented and their representative argued for the children to remain in Melbourne. Obviously any supervisor would have to be satisfactory to the children’s lawyer.

ORDERS DELIVERED

I certify that the preceding forty (44) paragraphs are a true copy of the reasons for judgment of the Judicial Registrar Loughnan

Associate: 

Date:  15 July 2010