NIKOLAKIS & NIKOLAKIS - [2007] FamCA 1738

FAMILY COURT OF AUSTRALIA

NIKOLAKIS & NIKOLAKIS

[2007] FamCA 1738

FAMILY LAW – CHILDREN - With whom a child lives – Child's views

Family Law Act 1975 (Cth)

Napier v Hepburn [2006] FamCA 1316
N v S (1996) FLC 92-655
B & B Family Law Reform Act 1995 (1997) 21 Fam LR 676
A & A (Relocation Approach) (2000) FLC 93-035

APPLICANT:

Mr Nikolakis

RESPONDENT:

Ms Nikolakis

INDEPENDENT CHILDREN’S LAWYER:

Champion Legal

FILE NUMBER:

PAF

219

2005

DATE DELIVERED:

19 March 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

FLOHM J.

HEARING DATE:

27.11.2006 to 1.12.2006, 18.12.2006 and 22.12.2006

REPRESENTATION:

COUNSEL FOR THE APPLICANT:

Ms E Lawson

SOLICITOR FOR THE APPLICANT:

Levy Partners

COUNSEL FOR THE RESPONDENT:

Ms M Gillies

SOLICITOR FOR THE RESPONDENT:

Adams & Partners

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr G Clarke

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ms C Hafey

Orders

That all previous parenting orders in relation to A born … June 1995, B born … January 1998, C born … June 2000 and D born … August 2002 (“the children”) be vacated.
That the children are to live with Ms Nikolakis (“the mother”) who is to have sole parental responsibility for decisions as to the children’s daily care and sole parental responsibility for decisions as to all major long-term issues in relation to the children.
That the mother may move the children’s permanent address from New South Wales to the Gold Coast in Queensland.
That Mr Nikolakis (“the father”) is to spend time with the children for a period of two hours on four occasions each year, such periods are to coincide with each Queensland school holiday period, and the first such period is to be during the 2007 Easter school holidays if that can be arranged by that time pursuant to Orders 6 and 7 hereof.
That the father may be accompanied by the children’s paternal grandmother, Mrs Nikolakis Snr, when he spends time with the children.
That the time the father spends with the children pursuant to Order 4 hereof is to be supervised by the … Children’s Contact Service, (“the Contact Service”) at times nominated by that Contact Centre and the Court requests that the first period occur during the 2007 Easter school holidays if possible.
That on each occasion the father spends time with the children at the Contact Service the mother or her nominee is to transport the children to and from the Contact Service.
That the mother and the father are to:
(a)Contact the Contact Service within seven (7) days of today’s date to arrange an assessment of their suitability to use the facilities of the Contact Service.
(b)Comply with any appointments made by the Contact Service for supervision of the time the children spend with the father.
(c)Comply with all reasonable rules of the Contact Service and all reasonable requests or directions of the staff of the Contact Service.
That following the first period of time the father spends with the children pursuant to Order 4 hereof the father and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NIKOLAKIS & NIKOLAKIS

Details

AGLC: NIKOLAKIS & NIKOLAKIS [2007] FamCA 1738
Case: [2007] FamCA 1738
Decision Date: 19 March 2007

CaseChat Overview and Summary

This case involved an application concerning parenting orders for four children, A, B, C, and D. The dispute centred on the children's residence, parental responsibility, and the extent of contact between the children and their father, Mr. Nikolakis. The matter came before Flohm J.

The court was required to determine the best interests of the children in relation to their residence, parental responsibility, and the nature and extent of the father's future involvement. Specifically, the court had to consider whether the children should live with the mother and relocate to Queensland, and the implications of this move for their relationship with the father. The court also had to assess the potential impact of the father's actions on the children's relationship with their mother and their overall stability.

Flohm J reasoned that the children's residence with the mother in Queensland offered greater advantages to their best interests than any alternative proposal. The court found that unsupervised time with the father posed disadvantages to the children's well-being, while supervised time presented greater advantages. The judge concluded that, regrettably, for these children, a meaningful relationship with one parent would have to be prioritised over a meaningful relationship with the other, based on findings regarding the mother's superior capacity to meet the children's needs. The court also considered the children's Greek heritage, finding it likely to be maintained to some extent.

The court ordered that all previous parenting orders be vacated. The children were to live with the mother, who was granted sole parental responsibility for both daily care and major long-term issues. The mother was permitted to relocate the children to the Gold Coast, Queensland. The father's time with the children was significantly restricted to two hours on four occasions annually, during Queensland school holidays, and this time was to be supervised by a Children's Contact Service. The father was also restrained from attending or contacting the children's schools, and both parents were restrained from denigrating each other to the children. Provisions were made for supervised contact, communication via telephone and webcam, and the exchange of information regarding the children's schooling and health.

Orders

Orders of the court

That all previous parenting orders in relation to A born … June 1995, B born … January 1998, C born … June 2000 and D born … August 2002 (“the children”) be vacated.

That the children are to live with Ms Nikolakis (“the mother”) who is to have sole parental responsibility for decisions as to the children’s daily care and sole parental responsibility for decisions as to all major long-term issues in relation to the children.

That the mother may move the children’s permanent address from New South Wales to the Gold Coast in Queensland.

That Mr Nikolakis (“the father”) is to spend time with the children for a period of two hours on four occasions each year, such periods are to coincide with each Queensland school holiday period, and the first such period is to be during the 2007 Easter school holidays if that can be arranged by that time pursuant to Orders 6 and 7 hereof.

That the father may be accompanied by the children’s paternal grandmother, Mrs Nikolakis Snr, when he spends time with the children.

That the time the father spends with the children pursuant to Order 4 hereof is to be supervised by the … Children’s Contact Service, (“the Contact Service”) at times nominated by that Contact Centre and the Court requests that the first period occur during the 2007 Easter school holidays if possible.

That on each occasion the father spends time with the children at the Contact Service the mother or her nominee is to transport the children to and from the Contact Service.

That the mother and the father are to:

(a) Contact the Contact Service within seven (7) days of today’s date to arrange an assessment of their suitability to use the facilities of the Contact Service.

(b) Comply with any appointments made by the Contact Service for supervision of the time the children spend with the father.

(c) Comply with all reasonable rules of the Contact Service and all reasonable requests or directions of the staff of the Contact Service.

That following the first period of time the father spends with the children pursuant to Order 4 hereof the father and the paternal grandmother may send letters, cards, gifts etc. to the children on each of the children’s birthdays and other special occasions, and those items may be read/inspected by the mother prior to being handed to the children for the purpose of ascertaining whether those items are appropriate for the children.

10.

That the mother is to keep the father informed at all times of a postal address where those items can be sent.

11.

That following the first period of time the father spends with the children pursuant to Order 4 hereof the father and the children are to have telephone communication on one occasion each week, at either 8.00am Saturday or 8.00am Sunday Queensland time, and the mother is to initiate the telephone call to the father’s landline telephone number.

12.

That from 1 January 2008 the telephone communication referred to in Order 11 hereof is to be replaced by webcam communication, and for that purpose both parents are to install a webcam in their respective homes by that date.

13.

That for the purpose of Orders 11 and 12 hereof the father is to forthwith provide to the mother any contact details required to implement those Orders, including his current landline telephone number, and is to keep the mother advised at all times of those contact details.

14.

That the mother is to sign all documents and do all acts necessary to authorise the school at which the children may from time to time attend:

(a) to furnish the father with copies of all school reports, notices and advices concerning the children and any activity involving the children;

(b) to make available to the father order forms for school photographs of the children.

15.

That the father is to keep the mother informed at all times of a postal address.

16.

That the father is restrained from attending or contacting the school which any of the children may from time to time attend.

17.

That the mother is to provide to the father details of any illness or injury to any of the children requiring hospitalisation as soon as possible after such occurrence.

18.

That each parent is restrained from denigrating the other parent or their family to or in the presence or hearing of the children, and from causing or permitting any other person to so denigrate to or in the presence or hearing of the children.

19.

That pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

20.

That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.

21.

That all outstanding applications are dismissed and removed from the Pending Cases List.

Background

Background to the litigation

Accordingly, in terms of this factor, the residence of the children with the mother holds greater advantages to the children’s best interests than any other residence proposal before the Court. It must follow that I conclude that the father’s preferred residence proposal holds corresponding disadvantages to the children’s best interests in terms of this factor. For the same reasons, I conclude that any time the children are to spend with the father on an unsupervised basis holds disadvantages to the children’s best interests. I am also satisfied that supervised time holds greater advantages to the children’s best interests than the preferred proposal of the mother and the Independent Children’s Lawyer that the children spend no time with the father.S.60C(3)(g) – Issues relevant to cultural and lifestyle background of the children and the parents. These children have a mixed Australian/Greek heritage and it is clear that whilst under the father’s and grandmother’s influence, particularly when they were spending so much time with them, the children have been a part of the Greek community in Sydney, attending religious and other celebrations associated with that community. This issue was certainly not raised by either party during the course of the proceedings other than in the form of one question to Dr RN as to whether she is concerned that the Greek aspect of their heritage would be lost if the mother relocates to Queensland. Dr RN’s evidence is that she hoped the Greek heritage would be maintained in some way, and that there is no reason why the children shouldn’t communicate with their Greek godparents. Dr RN also tells the Court that even though the mother reported that she wished to go to Queensland and “leave all this behind”, she also said that “when the children are older they can go back and find out”. Dr RN says that in the mother’s responses there was no sense of “that will be it”, rather the mother expected that at some point the children would recontact family members and she wouldn’t stand in the way of allowing that to happen. I accept that evidence. There is no evidence at all before me as to what the mother has or has not done to encourage that important cultural link in the period since September 2005 when the children have been in her care, or as to her intentions when they move to Queensland. I am satisfied that it is likely that the children’s Greek heritage will form a part of their future education and upbringing, albeit a lesser part than in the past. I make this finding not on any evidence as to the mother’s current proposal but on my findings on her general capacity to identify and meet the children’s needs. Accordingly, whilst the father’s proposal envisages greater exposure to the children’s cultural heritage than the mother’s proposals in terms of this factor, none of the proposal disadvantage the children significantly. S.60CC(3)(h) – Aboriginal or Torres Strait Islander heritage.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As I observed at paragraph 197 above, reaching a conclusion in relation to how, if at all, an outcome might be achieved whereby the children are able to benefit from a meaningful relationship with each of their parents should be a conclusion which flows from findings pursuant to s.60CC(2)(b) and s.60CC(3)(a) to (i). Taking into account the findings I have made, I am satisfied that unless the time which the children spend with the father is restricted in frequency and duration, and the time itself is closely monitored, these children will not have the benefit of a meaningful relationship with their mother. I am satisfied that that relationship is likely to be undermined and devalued by the father and the mother’s efforts to continue to provide stability and predictability are likely to be sabotaged. The benefits to the children of stability and predictability are included in the reasons why Dr RN is supporting the relocation by the mother and children to Queensland and I am satisfied on all of the evidence, including that of Dr RN, that the father will seek to disrupt the mother’s household if he has unfettered access to the children. On the other hand, of course, if the father’s time with the children is so restricted, the children will not have the benefit of a meaningful relationship with their father. Accordingly, and with regret, I must conclude that for these children it must be a meaningful relationship with one parent at the expense of a meaningful relationship with the other, and I have made findings that it is the mother who has the superior capacity to meet the children’s needs, including their emotional needs, and who has demonstrated a superior attitude to the responsibilities of parenting. Although the mother, supported by the Independent Children’s Lawyer, both propose orders whereby there is no face to face contact in the future between the children and the father, arguing that that is the only way in which the children’s relationship with their mother can be protected from the father’s manipulative, yet subtle, efforts to undermine that relationship, the evidence of Dr RN is that that is not an outcome that would assist the children in the long term. S.60CC(4) – Consideration of the extent of each parent’s fulfilment of their respective responsibilities as a parent. Again, I take into account the evidence and findings I have made pursuant to s.60CC(2)(b) and s.60CC(3)(c), (f) and (i) above. In relation to the matters specifically referred to in this section to which I must give consideration, there is no doubt that both the mother and the father have taken any opportunity available to each of them to participate in major long term issues in relation to the children, and have taken any opportunity available to each of them to spend time with the children and to communicate with the children. There is no evidence before me on which I could find that either parent has inappropriately sought to exclude the other parent from participating in major long term issues in relation to the children. Notwithstanding the very serious criticisms I have made of the father’s undermining of the children’s relationship with their mother and devaluing the importance of that relationship, until September 2005 when the father consented to orders that he spend no time with the children pending the final outcome of the criminal proceedings, neither parent had sought to keep the children away from the other parent. As I have found, the father’s undermining of the relationship was more subtle: an example being that following the March 2005 parenting agreement the father would be at the school when the mother went to collect the children and his mere presence there would cause A to elect to go with him instead of the mother.