Pagonis and Pagonis and Ors

[2020] FCCA 542

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAGONIS & PAGONIS & ORS [2020] FCCA 542

Catchwords:
FAMILY LAW – Parenting – best interests of child – where child lives with mother – where child’s relationship with father is problematic – where relatively mature child – where child’s wishes should be given significant weight – child to live with mother – child to spend time with father subject to the child’s wishes. 

Legislation:

Family Law Act 1975 (Cth), s.102NA

Applicant: MR PAGONIS

First Respondent: MS PAGONIS

Second Respondent: MR ADAMOS

Third Respondent: MS ADAMOS

File Number: ADC 2521 of 2018

Judgment of: Judge Young

Hearing date: 24 February 2020

Date of Last Submission: 24 February 2020

Delivered at: Adelaide

Delivered on: 24 February 2020

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: In Person

Counsel for the First Respondent: In Person

Solicitors for the First Respondent: In Person

Solicitors for the Second & Third Respondents: Kensington Legal Service

Counsel for the Second & Third Respondents: Mr Roberts

ORDERS

UPON NOTING THAT

A.This is an Order that is inconsistent with the provision of a family violence order pursuant to section 68P of the Family Law Act 1975 (“the Act”).

B.For the purposes of section 68P(3) of the Act a copy of this Order is to be provided to:

(a)The Registrar, Magistrates Court at 260-280 Victoria Square, Adelaide, SA 5000;

(b)Commissioner of Police (South Australia Police); and

(c)Child Welfare Officer the Department of Child Protection.

C.That both parties both made an oral application that section 102NA of the Family Law Act 1975 apply;

D.That the court is satisfied that s 102NA(1)(c)(iii) applies and the father is not permitted to cross-examine the mother personally.

E.That the parties were advised that they would not be permitted to personally cross-examine the mother and were directed to the FASS Duty Lawyer for the Legal Service Commission of SA.

THE COURT ORDERS THAT:

Parenting

1. The parties have joint parental responsibility for the child X born in 2009 (“the child”).

2. The child live with the mother and spend time with the father as follows, subject to the child’s wishes:

   (a)Each alternate weekend from the end of school on Friday to the commencement of school on Monday;

   (b)On the intervening alternate weekend on Sunday from 1:00pm to 4:30pm;

   (c)For half of each school holiday period;

   (i)If the mother and father cannot agree on which half of each school holiday period, starting from 2020 the child is to spend the first half of each school holiday period with the father and in 2021 the child is to spend the first half of each school holiday period with the mother, with this to continue alternating each year;

   (ii)On the father’s birthday from 10:00am to 8:00pm; and

   (iii)On Father’s Day from 10:00am to 8:00pm.

3. For the following special days, the child is to spend from 3:00pm to 8:00pm on each day, with the parent who the child is not currently spending scheduled time with, subject to the child’s wishes:

   (a)The Sunday of the Greek Easter weekend;

   (b)Christmas Day; and

   (c)The child’s birthday.

4. All changeovers for the purposes of Orders 2 and 3 are to take place at McDonalds Restaurant, A Street, Suburb B unless:

   (a)The mother, giving 24 hours’ notice, requests that a handover is to occur outside the front gate of the maternal parents’ property at C Street, Suburb D.

5. The parties are to communicate by SMS text message only with subject matter to be solely in relation to arrangements for the child.

6. The father is to access counselling as recommended in the family report dated 22 August 2019.

7. The mother is to make arrangements for the child to be referred to a psychologist to assist with the child’s anxiety and the mother is to approach a General Practitioner to obtain a mental health care plan for this purpose without delay.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2521 of 2018

MR PAGONIS

Applicant

And

MS PAGONIS

First Respondent

And

MR ADAMOS

Second Respondent

And

MS ADAMOS

Third Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case concerning a child, X, who is 10 years old.  She lives with her mother and since the parties’ separation the relationship, in particular, between the child and her father has been problematic. 

3. Two issues appear to have been mentioned in the family report that has been prepared at the expense of both parties.  First, the child told the family consultant that she saw her father assault her mother at the time of separation by pushing her against a wall.  Apparently the relationship between father and child was patched up to some extent and the child resumed spending time with the father in August 2018.  There was however an unfortunate second incident where the father gave the child his iPad.  The iPad contained video of the father engaged in sexual activity with his girlfriend, which the child saw and was upset and distressed about. 

4. The child, in her discussions with the family consultant, was noted to be a relatively mature child for her age.  She appeared to have an understanding of her wishes and expressed them clearly to the family consultant.  The family consultant was clearly of the view that the child’s wishes should be given very significant weight having regard to her maturity. 

5. The notable thing about the report is that the child is very conscious of her parents’ dispute.  The child is, it would appear, anxious, worried and depressed about her parents’ dispute and the degree to which she has been exposed to it.  The child said that she does not want to at this stage spend overnight time with her father or, alternatively, she wants to spend time with her father, but in the company of her godmother, Ms E.  The child has apparently not met the father’s partner at this stage. 

6. In the family report, the family consultant was of the view that the mother was child-focused, concerned about the child and able to provide a balanced assessment of the issues in the case.  The family consultant took a somewhat different view of Mr Pagonis.  While saying that he appeared concerned for X, he was at times distracted by his own personal stressors.  He, for example, at times spoke about X needing to understand that he needs to move on and re‑partner in order to be happy and for X to be accepting of that.  According to the comment of the family consultant, the father didn’t seem to appreciate the complexity of this in circumstances where X’s first knowledge of his new partner was seeing her in a video engaged in sexual activity with the father.  Mr Pagonis also focused on the financial strain he is under and his health issues.  He had a heart attack in 2017 and he suffers from diabetes.  The family consultant was concerned that at times Mr Pagonis was not able to prioritise the child’s needs above his own and he appeared at times to struggle to be child-focused. 

7. Neither party was cross-examined in this case because it was subject to an order made by me this morning under section 102NA of the Family Law Act 1975 (Cth), due to there being a final intervention order in place.

8. The parties relied on their trial affidavits. In the case of Mr Pagonis, devoted primarily to property issues which were resolved by agreement today, and a bare few paragraphs, [24] to [38], about parenting issues which did not tell me a great deal. The mother filed a relatively lengthy trial affidavit which, again, primarily seems to be concerned with property issues which have been resolved. In the circumstances where there has been no cross-examination, the affidavit material of both parties about parenting issues is scant.

9. I have relied very heavily on the family report.  The observations in the family report seem to me to be strongly borne out by my own observations of each of the parties in the courtroom today, which appear to be entirely consistent with the observations of the family consultant.  In the circumstances I consider that the recommendations of the family consultant should be followed and I will do so.

10. In relation to pick-ups and drop-offs, the mother has said that she prefers the drop-offs and pick-ups to be at McDonald’s.  However, she says that if she gives a day’s notice, she would like the option of having the child returned to the home of the maternal grandparents in C Street, Suburb D.  The father disagreed with that and said that the drop-offs should be at the F Centre.

11. Where neither party has dealt with the issue of pick-up and drop-off location in the trial affidavits nor am I not familiar with the layout of Adelaide, I cannot make any assessment of the relevant distances.  In circumstances where the child has been picked up and dropped off at McDonald’s for the past two years approximately, and where the mother is in full-time employment and evidently has the lion’s share of the financial burden of caring for this child - the father paying, according to him, $26 a week in child support or, according to the mother, $13 a week in child support, but neither party apparently giving evidence about the matter - I am concerned that whichever case is true,  the mother bears the lion’s share of the financial cost of caring for this child.  In the circumstances, I consider that the sacrifice of the father having to drive some further time to pick up this child is not unreasonable and is fair. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 12 March 2020