MORELLI & KIRIAKOU

[2020] FamCA 256

FAMILY COURT OF AUSTRALIA

MORELLI & KIRIAKOU [2020] FamCA 256

FAMILY LAW – PARENTING – Interim orders – where parties entered into final parenting orders by consent in July 2019 in respect of their two children – where the father filed an amended response in February 2020 seeking discharge of the final parenting orders – allegations of family violence made by the mother – intervention order – whether the children are at risk – children to spend supervised time with the father pending the adjourned date.

Family Law Act 1975 (Cth), ss 60CA, 60CC, 60I, 67Z, 67ZBA, 68Q, 69P
Family Law Rules 2004 (Cth), r 2.04D

APPLICANT: Ms Morelli

RESPONDENT: Mr Kiriakou

FILE NUMBER: MLC 6850 of 2019

DATE DELIVERED: 22 April 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 25 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson QC

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Gordon & Barry Lawyers

Orders Made 25 March 2020

1. All extant applications are adjourned to 8 April 2020 (‘the adjourned date’) at 10.00am for interim hearing by telephone.

2. Pending the adjourned date, the time that the children X born … 2011 and Y born … 2014 spend with the Applicant father pursuant to the final parenting Orders of 26 July 2019 be suspended and in lieu thereof, the children spend time with the father:-

   (a)       from 9.00am on 27 March 2020 until 9.00am on 30 March 2020; and

   (b)       from 9.00am on 2 April 2020 until 9.00am on 6 April 2020

   with all such time to be supervised by the Applicant father’s mother, and subject to her giving an undertaking to supervise the Applicant father at all relevant  times, to report to the mother any inappropriate conduct, and to terminate the time in the event of any such conduct.

3. Leave be given to the solicitors for the Respondent mother to serve electronically upon Victoria Police the two subpoenas which were filed and sealed by the Court on 24 March 2020.

4. Leave be given to the solicitors for the parties to photocopy and/or electronically scan the documents produced pursuant to the two subpoenas filed and sealed by the Court on 24 March 2020 subject to any objection by Victoria Police.

5. The return date on the two subpoenas filed and sealed by the Court on 24 March 2020 be amended such that all documents are required to be produced pursuant to the subpoena by 4.00pm on 6 April 2020.

6. Until further order, each of the parties, by themselves, their servants and/or agents, are hereby restrained from:-

   (a)       having the children or either of them sleep in the same bedroom as either of the parties;

   (b)       administering physical punishment to the children; and

   (c)       driving past the home of the other.

7. Pursuant to s.69P(2)(a) of the Family Law Act 1975 (Cth) (‘the Act’), to the extent that these Orders or any one of them may be inconsistent with the Interim Intervention Order that has been made by a Magistrates’ Court (‘the Intervention Order’):-

   (a)       the Orders herein shall prevail over such order and operate according to its terms; and

   (b) the Intervention Order is invalid, by force of s.68Q(1) of the Act.

AND THE COURT NOTES THAT:

A. Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morelli & Kiriakou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6850 of 2019

Ms Morelli

Applicant

And

Mr Kiriakou

Respondent

REASONS FOR JUDGMENT

Background

1. Proceedings were commenced between these parties on 21 June 2019 when the Applicant mother (‘the mother’) filed an Affidavit - Non-Filing of Family Dispute Resolution Certificate.  Thereafter, and on 25 June 2019 the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence (‘the Notice’) raising allegations for the purposes of s 67Z(2) or s 67ZBA(2) of the Family Law Act 1975 (Cth) (‘the Act’). On 25 June 2019 Registrar Russell was satisfied that a ground for exemption from the requirements of filing a s 60I(8) of the Act certificate from a family dispute resolution practitioner had been established.

2. In the mother’s Initiating Application filed on 21 June 2019 she sought final parenting orders in respect of the parties’ two children, X born … 2011 and now aged eight years and Y born … 2014 and now aged five years (‘the children’).  She did not seek any final or interim property orders.  She did not seek any interim parenting orders. 

3. The Notice filed by the mother pursuant to the Family Law Rules 2004 (Cth) (r 2.04D(1)(a)) made various allegations against the Respondent father (‘the father’). Those allegations included:-

   a)that there had been episodes of physical violence by the father toward the children;

   b)that there had been episodes of verbal denigrations and taunts by the father toward the children;

   c)that the father was communicating with the children regarding their religion, and in the process, exposing them “to ideas about religion that are not ‘mainstream’”;

   d)that the father would overhold the children;

   e)that the father would place the children in the midst of their parents’ conflict;

   f)that the father had perpetrated physical violence upon the mother throughout their cohabitation;

   g)that the father had perpetrated episodes of sexual violence upon the mother; and

   h)that the father had verbally denigrated and taunted the mother. 

4. In response to receipt of the Notice the Department of Health and Human Services in Victoria (‘the Department’) indicated, in correspondence to the Court of 8 July 2019, that it did not intend to intervene in the proceedings and that no further action would be taken by the Department.  The Department noted in that correspondence that there was “no Child Protection history for this family” and that “[t]here have been no recorded incidents of family violence between Mr Kiriakou and Ms Morelli.” The Department indicated that it made contact with Victoria Police Sexual Offences Child Investigation Team (‘SOCIT’), who “informed that they would not take any further action in relation to the allegations.”

5. The Department considered the children not to be at significant risk and noted the matter remained at the Child Protection Intake and Assessment phase before being closed on 8 July 2019.

6. On 22 July 2019, the father filed a Response to the Initiating Application of the mother.  In that response, he sought both final parenting and property orders.  He did not seek any interim orders. As a consequence of the introduction of the seeking of final property orders into the proceedings, the mother filed a Reply and each of the parties filed Financial Statements. Those documents were not relevant to the parenting orders proceeding of 25 March 2020. However, the interim and ex parte family violence intervention order obtained by the mother, on application of Victoria Police and as referred to hereafter in these reasons, took into account the ongoing nature of the property proceeding between the parties. It included in its terms, as set out in order 10 therein, that the father may:-

   communicate with a protected person through a lawyer or mediator but only regarding financial settlement matters. BUT ONLY IF the respondent does not commit family violence while doing so. 

7. On 26 July 2019, the parties entered into final parenting orders by consent.  Those final parenting orders are annexed to these reasons, and marked ‘Annexure A’. They provided for each of the parties to have equal shared parental responsibility for the children and for the children to live with each of the mother and the father.  In essence, the orders provided that the children live primarily with the mother and otherwise in a school term, live with the father a) in week one, from the conclusion of school on Friday (or 3.30pm if Friday is a non-school day) until the commencement of school on Monday (or 9.00am if Tuesday [sic] is a non-school day); and b) in week two, from the conclusion of school on Thursday (or 3.30pm if Thursday is a non-school day) until the commencement of school on Friday (or 9.00am if Friday is a non-school day).  School holiday periods were to be shared equally between the parties and there was provision for various special occasion days.  Overseas travel by either party with the children is provided for in order nine of those orders. 

8. On 27 February 2020 the father filed an Amended Response to Initiating Application. In that Amended Response he sought a discharge of the final parenting orders entered into between the parties on 26 July 2019, and otherwise, to be excused from further particularisation of the final orders sought by him in relation to parenting arrangements for the children, pending the receipt of a family report. The father further sought interim orders, those orders being that the final orders of 26 July 2019 remain in effect, and that pursuant to s 62G of the Act, the parties and the children attend upon a family consultant for the preparation of a family report with the costs of same to be borne equally by the parties.

9. Following the service upon her of the father’s application in respect of parenting matters (as described in the preceding paragraph), the mother attended at the Magistrates Court, and on an ex parte basis obtained (on 4 March 2020), the family violence interim intervention order referred to in paragraph six above.  The father was not made aware of those proceedings until 5 March 2020, when he was contacted by Victoria Police and informed that on 4 March 2020 Victoria Police had made an application for an intervention order on the mother’s behalf, and that such order had been granted. Further, that the interim order listed the mother and children as affected family members. 

10. The allegations made by the mother in the application and summons for an intervention order were, in short compass, essentially those made by the mother in these proceedings. In particular, they did not address at that stage specific behaviours since separation. In answer to why an intervention order was needed, the allegation was that the:-

    Police believe an FVIO is required to protect the AFM and her children due to the Resp’s lengthy history of violence directed at the AFM and controlling behaviours against all parties involved. 

11. The father attended Suburb B Police Station on 5 March 2020 as requested in order to be served with a copy of the mother’s application and ex parte interim intervention order.  The mother’s application was next listed for hearing in April 2020 at the Magistrates’ Court.  The father, in these proceedings, denied the mother’s allegations of family violence and stated his intent to contest the mother’s application and seek a dismissal of her application.

12. The mother, by instituting proceedings in the Magistrates’ Court and seeking ex parte orders, surprised the father. He had not received any communication from the mother’s lawyers since the making of the final parenting orders in July 2019 suggesting that the children’s time with him should be reduced or suspended, and his expectation was that any matters of concern to the parties would be ventilated if necessary upon notice and in this Court. 

13. Order nine of the family violence interim intervention order included a suspension until further notice of the final parenting orders entered into by consent between the parties on 26 July 2019.  Order five provided, relevantly, that the father could not contact or communicate with a protected person by any means, nor could he approach or remain within five metres of a protected person as set out in order six therein.  The children and the mother were protected persons and the consequence of the order was that the children could spend no time with the father.  The father could not communicate with the children, and he could not communicate with the mother or her lawyers in respect of any issue concerning the children. 

14. The allegations made by the mother in the intervention order proceedings were historical for the most part, and for the most part identical to those listed in her Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 21 June 2019.  The additional allegations made by the mother, were as set out in paragraph 36 herein. 

15. The effect of the intervention order was that the father did not see the children after Thursday 28 February 2020. That situation was continuing at the hearing.

16. The parties have not seen each other since November 2019 when they met during a single changeover.

17. There has been regular correspondence between the parties’ solicitors following the making of the final parenting orders in July 2019.  None of that correspondence emanating from the mother’s solicitors raised any concern about the father’s care of the children or allegations of family violence, such that the children’s time with their father would be reduced or not occur. 

This Application

1. The father filed a Further Application in a Case on 12 March 2020 seeking the following orders:-

   1. The parenting orders dated 26 July 2009 be reinstated.

   2. That for the purposes of Order 1 herein, where changeover does not occur at school, the maternal grandmother will continue to facilitate changeover at the Husband’s residence in Suburb D at the commencing or conclusion of the children’s time with the Husband.

   3. Pursuant to section 68P(2)(a) of the Family Law Act 1975 (Cth) (the Act), to the extent that Orders 1 and 2 hereof maybe inconsistent with the Interim Intervention Order that mas [sic] been made by a Magistrates’ Court (Intervention order):

   (a) These Orders prevail over such order and operates according to its terms; and

   (b) That Intervention Order is invalid, by force of section 68Q(1) of the Act.

   4. Pursuant to Section 62G of the Family Law Act 1975 (Cth) the parties and the children attend upon a Family Consultant for the preparation of a Family Report with the cost of same to be borne equally by the parties.

2. The father relied upon an affidavit sworn by him on 12 March 2020, together with annexures. The father also relied upon an affidavit sworn by him on 27 February 2020 in support of his Amended Response to the mother’s Initiating Application which was directed to parenting matters only. 

3. The mother filed a Response to the father’s Application in a Case on 18 March 2020.  She sought dismissal of the father’s Application in a Case and costs.  Further, she sought, relevantly, the following:-

   2. Pending further Order, the Mother have sole parental responsibility for the children.

   3. The Family Violence Intervention Order … made in 2020 be varied such that pending further order the children spend time with the Father as follows:

   (a) Week 1 on Saturday for 3 hours; and

   (b) Week 2 on Sunday for 3 hours

   4. The children’s time spent with the Father shall be supervised by a professional agency nominated by the Mother with the costs to be shared equally. 

   5. For the purpose of interim orders 2 and 3, within 21 days of the date of these Orders, the Husband and Wife shall do all acts and things and sign all documents necessary so as to facilitate the children spending time with their Father supervised by such professional agency as is agreed by the parties;

   6. The Mother shall keep the Father informed as to any illness or injury suffered by the children which requires significant treatment by a medical practitioner or other health professional.

   7. The Father shall within 21 days advise the names of 3 psychiatrists for the purposes of preparing an expert report including details of the expert’s availability and cost. 

   8. The Mother shall within 28 days of the Father’s compliance with Order 6 select an expert from, those nominated by the Father.

   9. Within 14 days of the Mother nominating an expert pursuant to Interim Order 7 the Mother and Father shall do all acts and things and sign all documents necessary to forward an agreed letter of instruction to the nominated expert.

   10. The parties shall do all acts and things necessary to attend upon the appointment with the nominated expert and meet the costs equally.

   11. Pending further Order, the Father and Mother shall be restrained by injunction from doing any act or thing to:

   (a) denigrate the other;

   (b) discuss any aspect of the Father’s health or military service;

   (c) discuss these proceedings

   in the presence of the children.

4. The matter then proceeded before Senior Registrar Field who made orders on 19 March 2020.  Those orders provided, relevantly, that the parenting orders dated 26 July 2019 be reinstated. It was further ordered by consent:-

   2. That the parties, through their lawyers, be able to communicate in relation to parenting issues and through any third party engaged by them in relation to these proceedings.

   3. That for the purposes of Order 1 herein, where changeover does not occur at school, the maternal grandmother will continue to facilitate the changeover at the Husband’s residence in Suburb D at the commencement or conclusion of the children’s X (female) born in 2011 and Y (male) born in 2014 (“the children”) time with the Husband.

   …

5. Following the making of the 19 March 2020 orders the mother filed an Application in a Case on 23 March 2020 seeking judicial review of the decision of the Senior Registrar.  By Response to an Application in a Case filed 24 March 2020 the father sought the mother’s application be dismissed and that the mother pay the father’s costs of and incidental to the application on an indemnity basis.  The mother had sought a similar order as to costs.

6. The mother relied upon affidavits sworn by her on 18 March 2020 and 20 March 2020, an outline of case filed on 25 March 2020, together with a ‘tender bundle’ which was before the Court in evidence.

7. In response to the mother’s affidavit material, the father relied upon a further affidavit sworn by him in G Town on 24 March 2020.

8. There was no objection by either party to the filing and relying upon of any additional material.

9. The matter proceeded before me on 25 March 2020 as a hearing de novo. The Court made orders that day as they appear at the commencement of these reasons. Correspondence from the solicitors for the mother to the Court of 25 March 2020 noted:-

   We attempted to file a subpoena to Victoria Police yesterday, but have yet to be advised of a return date. Are you able to advise the parties of the date allocated.

10. The subpoena sought to be issued by the mother on 24 March 2020, was directed to the Subpoena Management Unit Victoria Police. The subpoena sought documents of 1 January 2018 being the “original and/or copies of all statements made by Ms J (date of birth not known) and/or Mr Kiriakou born in 1978 in respect of assaults perpetrated upon her by [Mr Kiriakou]…”, together with “1 January 2019 to the date of this subpoena - Original and/or copies of all charges, convictions and complaints in relation to Mr Kiriakou…”, together with as from “…1 January 2019 to the date of this subpoena - Original and/or copies of all files including, but not limited to, statements, notes, reports, records of interview, JIRT files, SOCIT files, the computer printouts, COPS entries, charge sheets, police officer diary notes, video and audio recordings (including ERISP) intelligence reports, history of convictions, Court briefs, transcripts, documents, correspondence and other writings in relation to Mr Kiriakou…”. 

The Parties

1. The father was born in 1978 in Melbourne.  He is aged 41 years.  He is a Health Professional.  He currently works approximately eight days per fortnight, and structures his working hours around his parenting commitments to the children.

2. The mother was born in 1983 in Country Q. She is aged 37 years. She holds a tertiary degree. She manages four retail businesses. There is dispute between the parties as to her availability at all times to care for the children, both inside and outside of school hours.[1] The father deposed as to his understanding that the mother would modify her work hours following the making of the final parenting orders, so that she would be more available to the children.[2]  He deposed that this has not occurred, and that the children regularly tell him that their mother is not home, and that they are cared for by their maternal grandmother. The mother disputes this.

   [1] Affidavit of Ms Morelli sworn 18 March 2020, [5].

   [2] Affidavit of Mr Kiriakou sworn 27 February 2020, [13].

3. The parties married and commenced their cohabitation in 2005.  They separated on a final basis on 5 April 2019, as deposed to by the father, and on 9 April 2019 as deposed to by the mother. During the course of their marriage and in 2011, the parties’ daughter X was born. She is in year three at K School in Suburb L. In 2014, the parties’ son Y was born. Y is in preparatory class at M School in Suburb P. 

4. Upon the separation, the father moved into a serviced one-bedroom apartment and the mother remained in the former matrimonial home situate in Suburb F with the children. In or around July 2019, the father moved into the parties’ Suburb D property, which has four bedrooms and can easily accommodate the children. It is in close proximity to the mother’s home.

5. As set out earlier in these reasons, the mother made serious allegations against the father in the Notice filed on 21 June 2019.  She described physical abuse, which included the father turning a steak knife point toward her neck; punching her on her arm with a closed fist; hitting her across the back of the head causing her to fall to the floor and black out; twisting parts of her body, including her waist and arm; pinching her; anally raping her; and otherwise verbally abusing her. The father denied each and every one of the allegations as raised by the mother.[3] More recently, the mother has complained the father has unwantedly and repeatedly communicated with her; attended the children’s school when asked by her not to; hit the children; verbally abused her mother at changeover; kept her under surveillance in order to intimidate her; and hacked into her email account. These are matters all denied by the father. 

   [3] Affidavit of Mr Kiriakou sworn 27 February 2020, [10].

6. The final parenting orders were made as consent orders.  The mother’s evidence is that she hoped:-

   …that with the finalisation of parenting arrangements I could put the difficulties of our relationship behind me and that [Mr Kiriakou] would settle down and respect my boundaries moving forward.[4]   

   [4] Affidavit of Ms Morelli sworn 18 March 2020, [13].

7. Each of the parties submitted to the Court that the final parenting orders entered into between them as recently as July 2019, are not operating in the best interests of the children. The mother alleged that the parties are unable to co-parent effectively, and the father deposed that it “has been [his] observation since around September 2019 that the children are not coping well with the current parenting arrangements.”[5]

   [5] Affidavit of Mr Kiriakou sworn 27 February 2020, [12].

8. The father noted elsewhere in his evidence that the children have, on a number of occasions, expressed a wish to spend more time in his care than that provided for by the orders of July 2019.[6] Further, the father agreed with the mother that the parties were having difficulty co-parenting, in particular from approximately September/October of 2019. In late 2019, the father attempted to initiate family counselling with the mother in order to improve their communication for the benefit of the children. Ultimately, and for reasons which reflect on neither party, that did not occur. The parties agree that a family report ought to be prepared in the matter, and that such report will be prepared by a person appointed jointly by them.

   [6] Affidavit of Mr Kiriakou sworn 27 February 2020, [21].

Victoria Police

1. Whilst the father sought to re-visit the parenting orders in this Court and putting the mother on notice of that, the mother sought to address her concerns, by attending upon Victoria Police.  The mother attended at the Suburb C Police Station on 3 March 2020 where she made a statement. That statement, as previously noted, contained, in part, historical allegations, being those allegations made by her in the Court prior to the making of the final parenting orders in July 2019. Additionally, the mother made the following allegations:-

   - While on holiday in Queensland with my children, X and Y in December 2019 I had a conversation with them both about bullying.  During that conversation both X and Y told me that their father had hit them on previous occasions. I recorded my conversation with X and Y on my phone.

   - While Y and I were talking he pointed to his arm and showed me where his father, [Mr Kiriakou] had previously hit his arm hard.  Y said, “I tell him to stop” and “Sometimes I am about to cry but then I stand up and just walk away and watch tv”

   - X told me that it was not bullying because “He doesn’t do it all the time”

   - Since we have been separated, I often see [Mr Kiriakou] driving slowly past my address in Suburb F. [Mr Kiriakou] lives nearby but does not need to drive by my house to get to his place of work or to our children’s school in Suburb P and Suburb L.  X and Y have both said that when they are with their Father they sometimes drive past my place as well.  I believe that [Mr Kiriakou] is attempting to surveil me and intimidate me.  The last time I personally saw [Mr Kiriakou] in my street was on the 12^th January 2020.  I know it was [Mr Kiriakou] as he had a distinctive vehicle and I know his registration is … .

   - [Mr Kiriakou] and I have had limited contact with each other since our relationship ended however I feel he is trying to intimidate me since he has lost the emotional and psychological control over me which he previously held for 15 years.

   - I have an email account (...) which I occasionally use. In February 2020 I noticed that I was no longer receiving any diverted emails. When I attempted to recover my password, I discovered that the recovery email address was now .... This email belongs to [Mr Kiriakou]. I believe [Mr Kiriakou] accessed my email to gather information about me. I had not given [Mr Kiriakou] permission to access my personal email account and change the password.

   - My marriage to [Mr Kiriakou] has significantly altered my daily life. Since separation I have had all the locks at my house changed. Each night before I got to sleep, I will check that all the doors and windows are deadlocked and then place a chair behind each door. I also can’t sleep without my phone nearby.

   - We are still dealing with the Family Law Court of Australia and I feel that the ongoing legal issues have caused [Mr Kiriakou]’s behaviour to become increasingly unpredictable and I am very concerned for not only my safety, but the safety of X and Y given his history of violence and control.

2. On 10 March 2020, the mother attended at the suburb R Police Station and made a further statement pertaining to the specifics of her allegations of physical and sexual abuse perpetuated upon her by the father. Additionally, the mother referred (from paragraph 16 onward) to hosting an annual Christmas party at the parties’ home in November 2017. One of the guests at the party was Ms J, a then family friend and nanny to the parties’ children.  The mother detailed how Ms J was drunk and had asked to stay at the parties’ home. The mother agreed and led Ms J to the children’s room where there was a bunk bed.  The top of the bunk was a single bed and the bottom a double.  Ms J lay on the bottom bunk. The mother alleged that later that evening she saw the father in bed with Ms J. She alleged further that the father maintained to her that he did not have sex with Ms J, and she herself assumed that whatever did occur, if anything, was consensual. 

3. That statement of the mother of 10 March 2020 made to Victoria Police was a statement sought, on the mother’s evidence, by the police in relation to a claimed pending criminal investigation against the father in relation to his alleged conduct toward both the mother and toward Ms J. The mother only learned of the investigation in respect of Ms J on 10 March 2020. On 19 March 2020, senior counsel appearing for the father informed the Court (when the matter was before Senior Registrar Field) the father had been interviewed by Victoria Police in relation to an allegation of sexual abuse by the parties’ nanny, Ms J.  That interview occurred on 15 October 2019.  The father did not admit any of the allegations made and exercised his legal rights during that interview to respond “no comment” to each and every question asked of him.  He had, to the time of the hearing on 25 March 2020, not been charged with any offence. In his affidavits sworn in these proceedings the father denied those allegations in respect of Ms J. 

Other Matters

1. The mother made complaint of the father ignoring her requests and continuing to send her text messages, including as recently as 22 December 2019. It would appear, however, that the parties have both sent each other text messages. On many occasions it is the mother’s texts that have been aggressive and controlling in content.

2. A text sent from the mother to the father in August 2019, was relevantly, as follows:-

   Your calling and texting is not reasonable, it’s incessant. It’s the void in your own life that you’re trying to fill through them which is unfair. You’re the last person to be giving me advice on emotional needs of our children given this is something you’ve historically ignored.  If you’re learning now, let it be at your own risk, not theirs. Something as simple as showing up to assembly when it wasn’t your week for the kids to see you then disappear is like dangling a lollie in front of them and saying they can’t have it. Your need to constantly be in their face is simply selfish and typical of you. You’ve ruined my life, our marriage and I will not allow you to do the same to the kids. You suffocate them and they’re too worried about upsetting you because you’re constantly telling them how much you miss them.  Wake up, [Mr Kiriakou], your behaviour is reflective of your own insecurities. Deal with those insecurities on your own, not through the kids.  Enough is enough.  I’m not inviting a dialogue here, simply telling you to stop being so damn selfish and to stay out of my face.  If you continue to be forceful and passive aggressive with your communication to them during my time, I will block you.[7]

   [7] Affidavit of Ms Morelli sworn 18 March 2020, Tender Bundle No. “M-11”

3. On 5 October 2019, the father received a message from the mother which, amongst other things, stated “A better life for myself and the kids is one without you” and “All I have for you now is hatred and anger”.[8]

   [8] Affidavit of Ms Morelli sworn 18 March 2020, Tender Bundle No. “M-7”

4. The mother’s text to the father on 21 November 2019 included:-

   As you know, I don’t like bullshit so don’t play word games with me in the hope to have reasonable over written communications.  As before, all of your actions are distinctly at odd [sic] with your behaviour. You continue to blame and manipulate the kids and quite frankly, lie to them. Everyone is familiar with your manipulation and passive aggressive nature. I have had enough of your manipulating, intimidation and mind games.  Your constant driving past my house has been noted and reported to the police and must come to an end.  I am done with you [Mr Kiriakou].  It is approaching 12 months and I want a divorce.  Financial matters should be wrapped up soon.  I am not negotiating with you so I have left it in the hands of the lawyers.[9]

   [9] Affidavit of Ms Morelli sworn 18 March 2020, [27].

5. On 21 November 2019 a text message sent by the mother to the father was relevantly in part:-

   [Mr Kiriakou],

   Your message rejecting my proposed holiday schedule and making it out to be my fault has been totally expected and you should be commended on your predictable behaviour – I’m happy I see you for who you are.  However, I am forever surprised how you can always defer your responsibility and blame others and me in this instance, especially given your history. This will be final time you will hear from me directly.  I have copied some important family members as I think now is a good impasse to put a complete end to communication and for them to provide relevant support to us at this time.  For clarity, please communicate directly through my lawyers at all times from here on in. Any urgent matters for the kids you can text a group I will proceed to set up on WhatsApp.

   …

   It’s also extremely poor behaviour for you to write texts to her insinuating I am the reason she is not texting you. What you don’t realise is that when you act in that way, you think you are winning the kids over and making me look bad, but really what you are doing is injecting their hearts and minds with poison. I refuse to engage in such lowly behaviour.  You’re the last person capable of protecting the kids with your selfish and self indulged behaviour which clearly has not changed. You often make mention of how you want more time with them, however whenever I speak to the kids they are with family members because you need support and cannot be by yourself (which I am thankful to them for because it is the only way I know the kids have some normality).

   …

   At this time you are a burden to everyone around you and you bring us all down.  There isn’t enough charity work you can perform to cleanse you from your demonic behaviour.[10]   

   [10] Affidavit of Ms Morelli sworn 18 March 2020, Tender Bundle No. “M-9”

6. The mother created a WhatsApp group with the parties, the father’s sister and her own mother (‘the Y & X group’). On 1 February 2020, the mother sent the father a WhatsApp message on the Y & X group that included the statement “…Thirdly, your continued passing by my house has been noted once again.  The police have been informed and the matter is now being escalated.”[11] In the same message and in the context of the father indicating he would attend the child Y’s first day at school, which fell on Y’s day with the mother, the mother said to the father:-

   The school has been informed that the status and circumstances of our split and if you attend not only will it be an embarrassment for Y on his first day but I will be forced to apply for an IVO for continual intimidation.  And [Mr Kiriakou], mark my words I will do it.  Your behaviour is having a detrimental effect on the kids and myself which is where I draw the line and have no hesitation in publicising your true behaviour just as you have falsely publicised mine.

   The way you manipulate the children to see you as the favourite is outright cruel to them. Get on with life and stop being selfish and pathetic. Enough is enough. When will you realise the boundaries are not what you determine.

   You may simply think this is simply a threat of which it is not.  Out of courtesy I am sending you this note rather than completing a straight issuance of an IVO and also trying to protect Y from being caught in the middle of an awkward moment on his first day.

   This is the final warning [Mr Kiriakou].  I cannot keep going backwards and forwards in this manner.  You may think I am being petty or pedantic but it means you truly do not understand the gravity of your behaviour.[12]

   [11] Affidavit of Ms Morelli sworn 18 March 2020, [34].

   [12] Affidavit of Ms Morelli sworn 18 March 2020, Tender Bundle No. “M-12”

7. In paragraphs 29 and 30 of the mother’s affidavit of 18 March 2020, the mother made an allegation of possible sexual impropriety by the father, in relation to the parties’ daughter, X. It is not clear whether the mother is indeed alleging inappropriate sexualised behaviour, or asserting that the father does not keep appropriate boundaries such as she would maintain, and that he needs to.  She deposed, in any event, in relation to her concerns that:-

   I have not notified Victoria Police or any other department about my concerns regarding [Mr Kiriakou]’s behaviour towards X because I am unsure whether [Mr Kiriakou] has been sexually inappropriate towards X and I do not wish X to be exposed to invasive examinations and investigative procedures.

8. I note in relation to the contents of the previous paragraph that the mother, on 10 March 2020, and at police direction, attended SOCIT headquarters in Suburb R where she provided a statement to SOCIT in relation to alleged serious sexual assault offences committed upon her by the father. The mother did not make any allegation of inappropriate sexual behaviour by the father toward the parties’ daughter, X.  The father denies the mother’s suggestions of any sexual impropriety in his conduct toward the children. 

9. In the father’s affidavit filed 24 March 2020, the father denied having committed family violence against the mother and/or the children and denied each of the allegations put by the mother in her affidavit evidence. The father denied being verbally abusive to the maternal grandmother (a further allegation made), noting that the maternal grandmother had been facilitating changeover with him since approximately October 2019.

10. Ultimately, it was the mother’s case that she was gravely concerned for the safety and welfare of the children if they were placed in the father’s care unsupervised. 

Consideration

1. The mother has caused a relevant subpoena to be issued to Victoria Police to produce documents. The Court is of the view that such material ought be before it, and an opportunity should be afforded for that material to be obtained by the solicitors for the mother. That material may disclose nothing more than what is already before the Court as detailed above, but given the serious nature of the allegations made by the mother, and allegedly made by Ms J, there should be an opportunity afforded to place further relevant material before the Court. For that to occur, it is appropriate that these proceedings be adjourned for a further interim hearing to a date when such material may well have been able to be obtained and inspected.

2. The current issue for the Court is what should occur in the interim and what is the risk, if any, to the children in spending time with their father.

3. The father and mother, as the parents of the children, agreed in July 2019 that the children would live with their father for times that were substantial and significant, and times that were always unsupervised.  Each of the parties was represented at the time those orders were made.  Prior to the making of those orders and at the commencement of the proceedings, the mother had made serious allegations against the father in respect of family violence perpetrated not only upon herself, but upon the children.  The father denied, and continues to deny, those allegations. 

4. The mother was, at the time of the making of the final orders, the primary carer of the children, and remains so.  Her evidence is that she acts in their best interests and she, with legal advice, willingly agreed to allow the children to spend extensive time with their father, as she clearly determined it was in their best interests to do so. The parties then experienced some difficulties in their co-parenting thereafter. They each give different reasons for that, but they have agreed that those orders need revisiting.

5. The father addressed the matter by bringing further parenting proceedings in the Court, being the Court in which the final orders were made and being the Court in which the parties were continuing to litigate in respect of property proceedings. The mother determined that she would adopt a different course, and she went initially to the local police, particularly because of her concerns as to the father driving past her home and as to her allegation that someone, who she inferred was the father, had hacked her email account.  That started a process which unravelled in the way described above in these reasons.

1. The mother has made various allegations, both in this Court, in her statements to the police, and in the Magistrates’ Court, which are denied by the father. It is not possible at this point in time to test those allegations and denials.

2. The children, pursuant to the July 2019 orders, saw their father on a regular basis, which included block holiday periods, unsupervised, up to 28 February 2020.  That was a period of some seven months.  There has then been cessation of time spent with their father, and a cessation of any form of communication with him.  What the mother told the children as to the sudden absence of their father is unknown to the Court.  The evidence that is before the Court is that the children have a close relationship with their father.  The father’s evidence is that the children were expressing wishes to see more of him.  The mother’s evidence is that the parties’ son on occasion wished to spend more time with his father. Otherwise, it is not clear what the mother’s response is regarding the children’s wishes as asserted by the father.

3. The mother’s application is that the father spend time with the children, but that it be supervised by a professional agency and be very limited time. In the context of the current health pandemic, it is not practicable for the children to see their father in a supervision centre on an ongoing basis. The evidence that is before the Court is that the mother has some trust and confidence in members of the father’s family. As set out in paragraph 60 of the mother’s affidavit of 18 March 2020, the mother facilitated the father taking the children for a holiday to Queensland in September/October 2019 with his sister, Ms T, and niece, Ms S.  The mother deposed that she was anxious about the father travelling alone with the children, but she “…knew his sister and niece would supervise where necessary.”[13]  In paragraph 70 of that same affidavit, the mother noted the father relied “heavily on his family to assist in the care of the children.”

   [13] Affidavit of Ms Morelli sworn 18 March 2020, [60].

4. The mother has been reassured in the past by the presence of members of the father’s family when the children are with their father. The father’s mother is willing to supervise any time spent with between the father and children and to give an Undertaking to the Court to supervise the father at all relevant times, to report to the mother any inappropriate conduct, and to terminate the time in the event of any such conduct.

5. The mother makes complaint about some matters, which could readily have been resolved between the parties by the making of relevant restraining orders as provided for in the Act. To address the mother’s concerns and to promote the best interests of the children the Court will make some, limited in operation and mutual, restraining orders.

6. The current interim intervention order, precludes the father from being within a prescribed vicinity of the mother’s home. That order remains in effect, and will not be seen to be inconsistent with the order that the father should not drive past the home of the mother.  Likewise, the order should be mutual and the mother should not drive past the home of the father to, at the least, ensure that there are no further allegations made, one against the other, in these proceedings.

7. The interim intervention order, I reiterate, currently provides for no time spent with between the father and children, and for no communication to be had. That is not in the children’s best interests. The Court determines that the children’s best interests, being the paramount consideration as set out in s 60CA of the Act, are met by an immediate resumption of time spent with between the children and their father. These arrangements shall, at least until the adjourned date, have the added element of supervision by the paternal grandmother. This is a cautious approach until the interim proceeding can be concluded, upon the provision of further evidence in a short time frame. That time shall, however, include overnight time.

8. The reasons for this are as detailed throughout this judgment and are in particular:-

   a)the Court is satisfied that the primary considerations, as set out in s 60CC(2) of the Act are satisfied. There is a benefit to the children in having a meaningful relationship with each of their parents, and that relationship cannot be meaningful in circumstances where the father is precluded from having any contact with his children; and

   b)the mother agreed in July 2019 that it was beneficial to the children to have a meaningful relationship with their father, and she further agreed that the matters referred to in s 60CC(2)(b) of the Act were not such as to preclude the matters set out in s 60CC(2)(a) of the Act.

9. The historic allegations made by the mother existed at the time of the making of the consent orders in July 2019. Those orders then became operational and existed in their operation until the end of February 2020. The children spent regular time with their father and with their father’s extended family, and expressed a wish to spend more time with their father. 

10. The mother’s specific issues as to the hacking of her email account and the father driving by her property were matters which, in the case of the email account, the father denied, and in the case of driving by her property, the father admitted, but described as a necessity, and/or a convenience for him when travelling to the various locations to which he travelled. He denied the intent attributed to him by he mother. Had the father been approached in correspondence emanating from the mother’s solicitors and asked to travel by a different route, so as to avoid being in close proximity to the mother’s residence, that issue may well have been resolved. 

11. The matters raised by the mother, which are denied, are very serious matters.  The Court is unaware of whether there is an ongoing investigation in respect of the allegations made by Ms J, and indeed, what those allegations, if any, are.  The return of the subpoena and inspection of documents might produce some light on these issues and likewise, whether the father has been charged with any offences.

12. It may be on the adjourned date that an Independent Children’s Lawyer should be appointed, and that is a matter on which the Court shall seek counsel’s input.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 22 April 2020.

Associate:

Date:  22 April 2020

ANNEXURE A

1. The parties have equal shared parental responsibility for the children of the marriage, namely:

   1.1.X born … 2011; and

   1.2.Y born … 2014 (collectively referred as the children).

2. Other than is provided in this Order, the Children live with the Wife.

3. The children live with the Husband during the school term as follows:

   3.1.In week one, from the conclusion of school on Friday (or 3;30pm if Friday is a non-school day) until the commencement of school on Monday (or 9.00am if Tuesday is a non-school day);

   3.2.In week two, from the conclusion of school on Thursday (or 3;30pm if Thursday is a non-school day) until the commencement of school on Friday (or 9.00am if Friday is a non-school day);

4. The children live with the Husband during school holidays and other special occasion times as follows:

   4.1.For half of term 1, 2 and 3 school holidays as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years;

   4.2.For half of the long summer holidays as agreed between the parties and failing agreement:

   For the 2019/2020 long summer holidays:

   4.2.1.On a week about basis with the children spending the first week of the school holidays with the Wife and the second week on the long summer holidays with the Husband;

   From the 2020/2021 long summer holidays

   4.2.2.For the first week of the long summer holidays in even numbered years and the second week of the long summer holidays in odd numbered years; and

   4.2.3.The remaining time (approximately 4 weeks) with the children spending the first block of time with the Husband in even numbered years and the second block of time with the Husband in odd numbered years.

5. The time that the children living with the Husband pursuant to paragraphs 3 and 4 hereof, be suspended and the children live with the Wife during the following times:

   5.1.For half of term 1, 2 and 3 of the school holidays as agreed between the parties and failing agreement, for the first half in odd numbered years and the second half in even numbered years;

   5.2.For half of the long summer holidays as agreed between the parties and failing agreement:

   For the 2019/2020 long summer holidays:

   5.2.1.On a week about basis with the children spending the first week of the school holidays with the Wife and the second week on the long summer holidays with the Husband;

   From the 2020/2021 long summer holidays

   5.2.2.For the first week of the long summer holidays in even numbered years and the second week of the long summer holidays in odd numbered years; and

   5.2.3.The remaining time (approximately 4 weeks) with the children spending the second block of time with the Wife in even numbered years and the first block of time with the Wife in even numbered years.

6. The sub-paragraphs below apply on the events referred to in those sub-paragraphs notwithstanding any conflict with the earlier provisions of this Order:

   6.1.In 2019:

   6.1.1.the children to live with the Husband from 9.00 am on Christmas Eve to 11.00 am on Christmas Day;

   6.1.2.the Children to live with the Wife from 11.00 am on Christmas Day to 11.00 am on 28 December;

   6.2.In 2020 and even numbered years thereafter:

   6.2.1.the children to live with the Wife from 9.00 am on Coptic Christmas Eve to 11.00 am on Coptic Christmas Day;

   6.2.2.the children to live with the Husband from 11.00 am on Coptic Christmas Day, 7 January 2020, to 11.00 am on the day that falls after Coptic Christmas Day;

   6.2.3.the children to live with the Husband from the conclusion of school on Holy Thursday (or 3;30pm if Holy Thursday is a non-school day) until 11.00am on Easter Saturday;

   6.2.4.the children to live with the Wife from 11.00am on Easter Saturday to 9.00am or the commencement of school on Easter Monday;

   6.2.5.the Children to live with the Wife from 9.00 am to 6.00 pm on Coptic Good Friday;

   6.2.6.the Children to live with the Husband from 9.00 am to 6.00 pm on Coptic Easter Sunday;

   6.2.7.the children to live with the Wife from 9.00 am on Christmas Eve to 11.00 am on Christmas Day;

   6.2.8.the Children to live with the Husband from 11.00 am on Christmas Day to 11.00 am on 28 December;

   6.3.In 2021 and odd numbered years thereafter:

   6.3.1.the children to live with the Husband from 9.00 am on Coptic Christmas Eve to 11.00 am on Coptic Christmas Day;

   6.3.2.the children to live with the Wife from 11.00 am on Coptic Christmas Day to 11.00 am on the day that falls after Coptic Christmas Day;

   6.3.3.the children to live with the Wife from the conclusion of school on Holy Thursday (or 3;30pm if Holy Thursday is a non-school day) until 11.00am on Easter Saturday;

   6.3.4.the children to live with the Husband from 11.00am on Easter Saturday to 9.00am or the commencement of school on Easter Monday;

   6.3.5.the Children to live with the Husband from 9.00 am to 6.00 pm on Coptic Good Friday;

   6.3.6.the Children to live with the Wife from 9.00 am to 6.00 pm on Coptic Easter Sunday;

   6.3.7.the children to live with the Husband from 9.00 am on Christmas Eve to 11.00 am on Christmas Day;

   6.3.8.the Children to live with the Wife from 11.00 am on Christmas Day to 11.00 am on 28 December;

   6.4.The children to live with the Husband from after school or 3.30 pm until 6.00pm on the Husband’s birthday;

   6.5.The children to live with the Husband from after school or 3.30 pm until 6.00pm on each of the children’ s birthdays;

   6.6.The children to live with the Wife from after school or 3.30 pm until 6.00pm on the Wife’s birthday;

   6.7.The children to live with the Husband from 9.00 am on Father’s Day to 9.00am or the commencement of school the next day; and

   6.8.The children to live with the Wife from 9.00 am on Mother’s Day to 9.00am or the commencement of school the next day.

7. The children communicate with each of the parties by telephone at any reasonable time when the children are not in the care of the other parent.  

Changeover

1. Where changeover does not occur at day care/school, changeover shall be effected as agreed between the parties, and failing agreement:

   8.1.The Husband is to collect the children from the Wife's residence at the commencement of time; and

   8.2.The Wife is to collect the children from the Husband's residence at the conclusion of time.

Overseas travel

1. In the event that either party seeks to travel overseas with the children, he or she give the other parent no less than 60 days’ notice in writing and provide the other parent:

   9.1.A copy of the Itinerary;

   9.2.A copy return e-ticket;

   9.3.Proof that the children have received any and all necessary vaccinations at least 7 days prior to the intended overseas travel;

   9.4.Particulars of the places and contact numbers at where the children are staying (as applicable); and

   9.5.A proposal for make-up time (if applicable).

Medical/Miscellaneous 

1. In the event of any parenting dispute, the parties are to attend Mediation with N Services.

2. In relation to any illness and medical issues, each party will notify the other:

   11.1.Immediately if either of the children suffers any serious injury while in their care;

   11.2.As soon as practicable if either of the children suffers any other injury or illness while in their care; and

   11.3.Of any appointments made for either of the children.

3. Each party is at liberty to attend any medical or health related appointments for the children.

4. Each party keep the other informed of their contact telephone numbers and residential addresses.

5. Each party be at liberty to attend any school functions or extra-curricular functions that parents are invited to attend.

6. Pursuant to Section 65DA(2) and Section 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 attached and are included in these Orders.

7. The Initiating Application filed 25 June 2019 regarding parenting issues and the Response to Initiating Application filed 22 July 2019 regarding parenting issues be and hereby are dismissed.

8. There be no order as to the costs of and incidental to the parenting proceedings.

9. In the event of either party being unable to care for the children for more than 48 hours they will give the other parent first right to care for the children.