Netopoulis and Kitsannis - [2009] FMCAfam 1126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NETOPOULIS & KITSANNIS

[2009] FMCAfam 1126

FAMILY LAW – Children’s issues – mother deceased – maternal grandparent’s application for extension of the time their granddaughter spends with them – additional time opposed by father – ordered some additional time with maternal grandparents.

Family Law Act 1975 ss.60B, 60CA, 60CC

Applicants:

MS NETOPOULIS & MR NETOPOULIS

Respondent:

MR KITSANNIS

File Number:

MLC 4463 of 2009

Judgment of:

Bender FM

Hearing date:

21 October 2009

Date of Last Submission:

21 October 2009

Delivered at:

Melbourne

Delivered on:

21 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Baker

Solicitors for the Applicant:

Cash & Stavroulakis Lawyers

Counsel for the Respondent:

Mr McConchie

Solicitors for the Respondent:

F Butera & Co

ORDERS

The father have sole parental responsibility for the child [X] born in 2003 (“[X]”).
[X] live with the father.
[X] spend time and communicate with the maternal grandparents as follows:
(a)each alternate weekend from after school Friday to 5:00pm Sunday;
(b)during school term, each Wednesday from after school to 6:00pm;
(c)for one week in the July school term holidays as agreed between the parties and failing agreement for the first week from 10:00am on the first Saturday to 10:00am on the second Saturday;
(d)for one week in the long summer vacation as agreed between the parties and failing agreement from 10:00am on January 10 to 10:00am on January 17 each year;
(e)from 3:00pm Christmas Eve to 10:00am Christmas Day in odd numbered years;
(f)from 10:00am to 4:00pm Christmas Day in even numbered years;
(g)for four hours on [X]’s birthday and the mother’s birthday from 4:00pm to 8:00pm;
(h)from 4:00pm on the Saturday preceding Greek Orthodox Easter Sunday until 4:00pm on Greek Orthodox Easter Sunday in each odd numbered year;
(i)from 4:00pm until 8:00pm each Greek Orthodox Easter Sunday in even numbered years;
(j)from 10:00am to 4:00pm each Mother’s Day; and
(k)as otherwise as agreed between the parties.
In the event [X] is spending time with the maternal grandparents on the Father’s Day weekend, such time shall be suspended each Father’s Day from 10:00am;
The father shall facilitate [X] telephoning the maternal grandparents upon her reasonable request to do so.
Whilst [X] is spending time with the maternal grandparents, the maternal grandparents shall facilitate [X] telephoning her father upon her reasonable request to do so.
The maternal grandparents shall be permitted to attend [X]’s end of year school concert, speech night and any concerts, performances or sporting events in which [X] is a participant.
The maternal grandparents shall be responsible for the travel arrangements associated with their time with [X].
In the event [X] requires medical treatment whilst with her maternal grandparents they shall immediately notify the father.
In the event [X] suffers any serious illness or accident when with the father, he shall advise the maternal grandparents.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 4463 of 2009

MS NETOPOULIS & MR NETOPOULIS

Applicants

And

MR KITSANNIS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application relating to the child [X] (“[X]”). She was born [in] 2003 which makes her six and a half years of age. I am told she is a delightful, happy and intelligent child. She was born of Mr and Ms Kitsannis. Sadly, Ms Kitsannis died in August 2005. The parties separated in October 2004, being at or around the time that

Ms Kitsannis was diagnosed with cancer. At that time, the wife chose to go and live, with [X], with the maternal grandparents where they lived until very sadly Ms Kitsannis passed away.
The father, to his credit, did not challenge the arrangements in relation to [X] living with her mother at the maternal grandparents’ home, and I accept he did so out of his concern to minimise the stress on

Ms Kitsannis, and to enable Ms Kitsannis to have [X] by her side as long as was possible.
Sadly and unfortunately in this case, the father and the maternal grandparents just do not get along. There is a very high level of animosity between them and, to put it quite bluntly, they do not like each other; and that is very sad. To their credit, however, at least to date they appear to have shielded [X] from this animosity and I can only hope that they continue to do that into the future.
Orders were made by Guest J on 31 August 2005 which put into place arrangements as between the father and the maternal grandparents in relation to the living arrangements for [X]. In summary, they provided for the father to have parental responsibility for his daughter, for [X] to live with him, and for [X] to spend time with her maternal grandparents each alternate weekend from 10.00 am Saturday till 5.00 pm Sunday, as well as very sensible provisions for the special occasions in [X]’s life, being Christmas, birthdays, Greek Orthodox Easter, Mother’s Day, et cetera. By and large those arrangements have proceeded without incident for [X] since that time.
On 22 May 2009, the maternal grandparents filed the application that comes before me today in which they are seeking orders that would increase the amount of time that [X] spends with them. What they are seeking is that [X] spend time with them each alternate weekend from after school Friday to before school Monday, as well as an alternate Wednesday from after school to before school the next day.
The maternal grandparents are also seeking to spend time with [X] for half of all school holidays. They would like an extension of the birthday time from four to six hours. They want an order that if [X] is placed in childcare for any reason after school, that they be given the opportunity to look after her instead. They want [X] to be able to ring them if she asks her dad to be able to do so. They want to spend each alternate New Years Eve with her.
They want to be able to go to the school functions that involve [X] like award nights and speech nights and concerts. They want a provision that either of them give the other 48 hours notice if there is any necessity for a change in the arrangements that are put in place. They would like to keep each other advised of all relevant health concerns, and they would like the existing arrangements in relation to the special days to otherwise continue.
The respondent father opposes the extension of time. He seeks that the current arrangements continue with the addition of two periods of one week of holiday time – one in the July term holidays and one in the Christmas holidays – and it is noted that this accords with the recommendations contained in the family report that was prepared in this matter by Christine Bendall and made available to the parties on

21 August 2009.
In the maternal grandparents’ initial application they were seeking an order for shared parental responsibility in relation to [X] as between themselves and the father. I made it quite clear this morning that that was not an order that I would contemplate making and, to their credit, when the matter commenced before me earlier today it was not an application that they pursued. However, the maternal grandparents did pursue the increase in time with [X] that I have just outlined.
The maternal grandmother only gave evidence which was appropriate, and I am not being in any way critical of that. She had filed two affidavits in support of the grandparents’ application, and she was also cross-examined today in relation to her evidence and why it was that she and her family were of the view that it would be in [X]’s best interests that she be able to spend more time with them than that which is currently taking place.
Her evidence, if I were to put it succinctly, was that she is seeking to spend extra time with [X] as she believes that this is something that [X] herself is seeking. She believes that it is vitally important that [X]’s link with her maternal family continue and be strengthened, and she believes that she and the maternal family have an important role to play in [X]’s life now and into the future.
She conceded that there was a level of animosity between her family and the father’s family but that, where necessary, she does communicate with the father in relation to [X] whenever there is a necessity to do so. It was her evidence that when [X] spends time with them she has an opportunity to interact with her cousins on the maternal side, and that she is an important and integral part of the maternal family; and that is something that should continue and be strengthened into the future.
The father, Mr Kitsannis, also gave evidence in which he confirmed the affidavit material that had been filed by him and explained to the court why, from his perspective, the current arrangements that are in place with the additional holiday time are, in his view, in [X]’s best interests. It was his evidence that he believes it is important for [X]’s routine to be maintained; that the proposal of the grandparents would have her “coming and going” which he did not believe would be appropriate; that he is [X]’s surviving parent, her primary carer, and that whilst the grandparents have an important role in [X]’s life, they are not her parents, they are her grandparents; and that the arrangements that are in place are working well for [X] and are reflected in the reality that she is the delightful young lady that everyone is telling me she is.
The father is in full time employment. He works 7.6 hours a day, and he has a flexible arrangement that means he can start early and finish early, or start later and finish later. But I accept his evidence that normally what happens is that he leaves for work around 9.00 am, drops [X] to school, then goes off to work. He gets home somewhere between 5.00 pm to 5.30 pm, and that when [X] finishes school she hops on the school bus where she either goes to her paternal grandparents’ home, her paternal aunt’s home or her paternal cousin’s home because the reality is that the Kitsannis family all live very close to each other in [suburb omitted]. It is obviously a close knit and loving and caring family, and that because of this there is no necessity for any after-school care to be utilised because the family is there to be able to care for [X].
Mr Kitsannis was very frank, to his credit, in conceding that the relationship between himself and the maternal grandparents is a very poor one. He said, quite bluntly, that he does not like them and that if the relationship was different then the parties probably would not need to be at court because they themselves would have been able to sensibly expand the relationship. However in the reading of the material, I can understand the upset and level of lack of communication that, unfortunately, continues to this day.
As I indicated earlier, Christine Bendall, Family Consultant of this court, prepared a family report in this matter. She made herself available today for cross-examination. She was asked as to why it was her recommendation that the current arrangements, with some additional holiday time, would be in the best interests of [X]. If I were to summarise what it was Ms Bendall was saying, she indicated it was her assessment of this family at this time.
Some alternative ways forward were put to Ms Bendall and it was suggested that perhaps spending some time with the maternal grandparents after-school Friday to 5.00 pm Sunday would still be an arrangement that would be in [X]’s best interests. Ms Bendall agreed that was a possible way forward, but stated that she did not at this point in time support the level of interaction that was being sought by the grandparents.
I asked whether Ms Bendall had an opinion in relation to something that had come to my mind which was the possibility of one night during the school week [X] being cared for by her maternal grandparents rather than the paternal grandparents, and she responded very positively to that as a proposal.
In relation to the holiday time, Ms Bendall confirmed that her proposal of a couple of weeks in toto during the school year was what she considered to be in [X]’s best interests because of the importance of balancing that time with the importance of her being able to have holiday time with her father who is her primary carer, and with her paternal family as well.
The final question that I had of Ms Bendall related to the maternal grandparents being given the opportunity to go and watch their granddaughter if she was in a concert at school, or at speech night getting awards, et cetera. I thought what Ms Bendall had to say in response to that was incredibly telling. She said words to the effect, “Of course [X] would love that, but only if the adults behaved themselves.” In other words, the adults have to remember that [X] loves all of them, and it is incumbent upon them to address some of their issues.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
So what are the best arrangements for [X] based on what are her best interests? Mr McConchie quite properly pointed out in the documentation provided to me that a great deal of the Act refers to the importance of promoting the relationship between the children and both their parents. Sadly, in this case, the reality is that [X] only has one surviving parent. But the Act is also very clear, and was actually specifically amended in 2006, to ensure that the court promotes the relationship children have with the other important people in their lives and in particular their grandparents. I refer to section 60b(2)(b) above and to section 60cc(3)(b) of the Act which requires the court to consider the nature of the children’s relationship with their grandparents.
There is no right or wrong answer in this matter, and that always makes it extraordinarily difficult for me when I am asked to make these decisions when, in circumstances as we have here, the important adults in [X]’s life are unable to communicate with each other. [X] is only six years of age. She has lived primarily in her father’s care now for over four years. Her father is her primary attachment. Her father is going to continue to remain [X]’s primary carer and to be her primary attachment, and probably to be the most important adult in her life. That is closely followed by the other important adult relationships that she has. They include, of course, her paternal extended family, and I am sure she is loved and loves her paternal grandma and grandpa, her aunties, her uncles and her cousins.
But the other reality for [X] is that she has a very close relationship with her maternal family and she needs to know about her mother and continue her relationship with her mother’s family. It is, I thought, to everyone’s credit that when [X] was talking to Ms Bendall she spoke openly of her mum. And whatever might be the views of the maternal family in relation to the paternal family, it is quite clear to me that they allow and encourage [X] to speak of and to acknowledge the importance of her mother now and into the future. It is important that [X] continues to be allowed to spend ongoing proper time with her maternal family so that that positive relationship continues, and as she gets older and has more questions that she has that opportunity to explore and extend that relationship.
I have thought long and hard about what sort of orders I should make today that I believe will enable all of [X]’s important relationships to continue to prosper and to be such that they do not continue to cause stress for [X]. As I said, she is only six years of age. I am not of the view that she needs to be spending overnight midweek time other than with her dad at this point in time. I am, however, of the view that she could be spending a little more time with the maternal family, albeit not anywhere probably to the extent that they would like.
I am, accordingly, going to make the following orders:
a)The father will continue to have sole parental responsibility for [X];
b)[X] will live with her father;
c)She will spend time and communicate with the maternal grandparents as follows:
i)each alternate weekend from after school Friday to 5.00 pm Sunday during school term;
ii)each Wednesday from after school till 6.00 pm;
iii)for one week in the July school term holidays as agreed between the parties and, failing agreement, for the first week from 10.00 am the first Saturday to 10.00 am the second Saturday;
iv)for one week in the long summer vacation as agreed between the parties and, failing agreement, from 10.00 am January 10 to 10.00 am January 17 each year;
v)from 3.00 pm Christmas Eve to 10.00 am Christmas Day in odd numbered years;
vi)from 10.00 am to 4.00 pm Christmas Day in even numbered years;
vii)for four hours on each of [X]’s birthdays from 4.00 pm to 8.00 pm;
viii)from 4.00 pm the Saturday preceding Greek Orthodox Easter Sunday until 4.00 pm Greek Orthodox Easter Sunday in each odd numbered year;
ix)from 4.00 pm until 8.00 pm each Greek Orthodox Easter Sunday in even numbered years;
x)from 10.00 am to 4.00 pm each Mother’s Day; and
xi)as otherwise agreed between the parties.
d)In the event that [X] is spending time with the maternal grandparents on the Father’s Day weekend, such time shall be suspended on Father’s Day from 10.00 am;
e)The father shall facilitate [X] telephoning the maternal grandparents on her reasonable request to do so;
f)Whilst [X] is spending time with the maternal grandparents, the maternal grandparents shall facilitate [X] telephoning her father on her reasonable request to do so;
g)The maternal grandparents shall be permitted to attend [X]’s end of year school concert, her speech night, and any concerts or performances in which [X] is a participant;
h)The maternal grandparents shall continue to be responsible for the travel arrangements associated with their time with [X];
i)In the event [X] requires medical treatment whilst in the maternal grandparents’ care, they shall immediately notify the father; and
j)In the event [X] suffers serious illness or an accident when with her father, he shall advise the maternal grandparents.

That latter order does not mean the father needs to ring if [X] has got a tummy ache or she has got a cold, or she is having a bad day. I mean a serious illness that requires medical intervention to the hospital level. If she is very sick, then it is appropriate that the maternal grandparents are advised of that fact.
They are the orders that I am making. I do have one other comment that I would like to make at this point in time. In the family report prepared by Ms Bendall in paragraph 26 she makes some very, very telling comments. She says the following:
“The conflict between the adults is extremely entrenched and enduring, and contains issues which will be very difficult for the parties to resolve.”
She then goes on to say that:
“Although defining the amount of hours this child spends with the father and her grandparents is the primary and significant issue, in the consultant’s opinion almost of equal importance is the adults meeting the challenge of resolving their dispute, and allowing this little girl to enjoy both houses without the ongoing conflictual overtones. Each household provides [X] with unique and valuable opportunities to share nurturing relationships and enhance her emotional development.
In the future, both Mr Kitsannis and Mr and Mrs Netopoulis need to provide [X] with the support that she needs to continue enjoying the relationships throughout her childhood without experiencing any further losses.”
I know that the hurts that the families have suffered cannot be easily fixed or mended but, quite bluntly, you are the adults and I ask you, on [X]’s behalf, to sit down and have a real look at yourselves and contemplate how you can better deal with each other to ensure that this beautiful little girl is not caused any further hurt or pain or loss through your actions. I cannot make orders about that. Only you as adults can look at yourselves and make that decision because, if you can do that and if your families can do that, then your daughter and your granddaughter will thank you for as long as she lives.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate: Sarah Hession

Date: 27 October 2009