Panos and Panos

[2015] FCCA 3334

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANOS & PANOS [2015] FCCA 3334

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – “dire need of parenting orders” – three children aged 14, 10 and 7 years – eldest child lives with father – younger children live with mother – best interests of children – parental responsibility – equal shared parental responsibility – arrangements for younger children to spend time with father – necessity to meet requirements of father’s work roster – where father has arranged leave from his employment during January.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62G

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS PANOS

Respondent: MR PANOS

File Number: SYC 7485 of 2014

Judgment of: Judge Scarlett

Hearing date: 8 December 2015

Date of Last Submission: 8 December 2015

Delivered at: Sydney

Delivered on: 11 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Coulton

Solicitors for the Applicant: Steven Stefanou & Co. Solicitors

Counsel for the Respondents: Ms Petrie

Solicitors for the Respondents: Photios Vouroudis & Co

Independent Children's Lawyer: Mr Christaki

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

1. All prior parenting Orders regarding the children Z born (omitted) 2001, X born (omitted) 2005 and Y born (omitted) 2008 are discharged.

2. The parties are to have equal shared parental responsibility for the said children Z, X and Y.

3. The child Z is to live with the father.

4. The children X and Y are to live with the mother.

5. Z is to spend time with the mother in accordance with her wishes.

6. The father is to do all acts and things necessary to encourage and facilitate Z’s spending time with the mother.

7. In the event that Z expresses a wish to communicate or spend time with the mother, the father is to do all acts and things necessary to facilitate such request.

8. The mother is at liberty to contact Z by mobile telephone, including text message, and by email.

9. The children X and Y are to spend time with the father as follows:

   (a)In a four (4) week cycle, with week 1 starting on Friday 11 December 2015, as follows:

   (i)Week 1: from after school on Friday until 7:00 pm on Sunday;

   (ii)Week 2: from after school on Friday until 7:00 pm on Sunday;

   (iii)Week 3: from after school on Friday until 10:00 am on Saturday; and

   (iv)Week 4: from after school to 7:00 pm on Tuesday and Thursday;

   (b)For half of the Autumn, Winter and Spring school holiday periods as agreed between the parties and failing agreement, as follows:

   (i)The first half in 2015 and all odd-numbered years thereafter; and

   (ii)The second half in 2016 and all even-numbered years thereafter.

   (c)For the December/January school holidays in 2015/2016 as follows:

   (i)The children are to be with the mother from 17 December until 31 December 2015;

   (ii)The children are to be with the father from 9:00 am on 1 January to 5:00 pm on 8 January 2016;

   (iii)The children are to be with the mother from 5:00 pm on 8 January until 5:00 pm on 15 January 2016; and

   (iv)The children are to be with the father from 5:00 pm on 15 January until 5:00 pm on 26 January 2016.

   (d)In the event that the children X and Y are in the care of the father during the December /January school holidays, Greek Easter or Mother’s Day, the father’s time with the children is to be suspended as follows:

   (i)From 1:00 pm on Christmas Eve 24 December until 1:00 pm on Christmas Day 25 December;

   (ii)From 1:00 pm on New Year’s Eve 31 December until 1:00 pm on New Year’s Day 1 January;

   (iii)From 1:00 pm on Easter Sunday until 1:00 pm on Easter Monday; and

   (iv)From 10:00 am until 7:00 pm on Mother’s Day

   And the children are to spend time with the mother during the above periods.

   (e)In the event that X and Y are in the mother’s care during the December/January school holidays, Greek Easter or Father’s Day, the mother’s time with children is to be suspended as follows:

   (i)From 1:00 pm on Christmas Eve 24 December until 1:00 pm on Christmas Day 25 December;

   (ii)From 1:00 pm on New Year’s Eve 31 December until 1:00 pm on New Year’s Day 1 January;

   (iii)From 1:00 pm on Easter Sunday until 1:00 pm on Easter Monday; and

   (iv)From 10:00 am to 7:00 pm on Father’s Day

   And the children are to spend time with the father during the above periods.

10. For the purposes of the immediately preceding Order:

    (a)the school holidays are deemed to commence at 9:00 am on the Saturday immediately after the conclusion of each school term and to conclude at 5:00 pm on the day before the children are required to attend school at the commencement of the next school term; and

    (b)the mid-point of the Autumn, Winter and Spring school holiday periods is deemed to be 12:00 noon on the middle Saturday of the school holidays.

11. When the children are in the care of the father he is to ensure that each of the children has her own bed and sleeps in her own bed.

12. The children’s time with the father in accordance with Order (9)(a) is to be suspended during school holiday periods.

13. For the purpose of the children X and Y’s time with the father with the father, unless otherwise agreed in writing, changeover where the children go from the care of one parent to the care of the other parent is to be as follows:

    (a)At the children’s school when the time is to start after school and conclude before school; and

    (b)At all other times, the father is to be responsible for collecting the children X and Y from the front of the mother’s residence at the start of the children’s time with the father and delivering them to the front of the mother’s residence at the conclusion of their time with the father.

14. The children X and Y are to have the following telephone communication with the parents:

    (a)When the children are in the mother’s care, telephone conversations with the father between 7:00 pm and 7:30 pm on Monday, Wednesday and Thursday of each week and to facilitate such telephone calls:

    (i)The father is to telephone the children;

    (ii)The mother is to have the children available to speak to the father; and

    (iii)The mother must ensure that the children have privacy during their telephone conversations with the father; and

    (b)Further telephone conversations or text messages with the father as the children or either of them may reasonably request and the mother is to facilitate the making of such telephone calls or text messages.

    (c)When the children are in the father’s care, telephone conversations with the mother between 7:00 pm and 7:30 pm on Tuesday, Thursday and Saturday and to facilitate such telephone calls:

    (i)The mother is to telephone the children;

    (ii)The father is to have the children available to speak to the mother; and

    (iii)The father must ensure that the children have privacy during their telephone conversations with the mother; and

    (iv)Further telephone conversations or text messages with the mother as the children or either of them may reasonably request and the father is to facilitate the making of such telephone calls or text messages.

15. The father and the mother are authorised to obtain directly from any school at which the children are enrolled a copy of the children’s school reports and all newsletters, notices and advices about school photographs ordinarily sent to parents by the school.

16. The father and the mother are to authorise any school the children may attend to provide directly to the other parent at that parent’s cost all reports, newsletters, notices or advices about school photographs usually received by parents from the school AND THAT for the purpose of this authorisation this Order is deemed to be such authorisation to the school.

17. The parties must notify each other as soon as practicable if all or any of the children should suffer any illness or injury requiring hospital; admission, such notification to include the address and telephone number of the hospital, and they must authorise the hospital to provide information to the other party as to the children’s condition and treatment.

18. The mother is restrained from collecting the child Z from school.

19. The father is restrained from collecting the children X and Y or either of them from school other than as provided by these Orders or as otherwise agreed between the parties in writing.

20. The mother and the father are restrained from:

    (a)Physically disciplining any of the children;

    (b)Making critical or derogatory remarks about the other parent to or in the presence or hearing of any of the children; or

    (c)Discussing these proceedings and any issues in dispute between the parties with or in the presence or hearing of any of the children.

21. The mother and father must each use their best endeavours to prevent any third party from:

    (a)Making any critical or derogatory remarks about the other parent to or in the presence or hearing of any of the children; or

    (b)Discussing these proceedings and any issues in dispute between the parties with or in the presence or hearing of any of the children.

22. For the purposes of communicating information between the parties, the mother and father are to:

    (a)communicate by telephone matters of an urgent nature and otherwise;

    (b)communicate by email or text message about day to day matters including arrangements for each parent to spend time with the children.

23. The mother must ensure that the father is kept informed of:

    (a)any medical problems or illnesses suffered by any of the children whilst in her care;

    (b)any medication that has been prescribed for any of the children; and

    (c)any other matter relevant to the welfare of any of the children.

24. The father must ensure that the mother is kept informed of:

    (a)any medical problems or illnesses suffered by any of the children whilst in his care;

    (b)any medication that has been prescribed for any of the children; and

    (c)any other matter relevant to the welfare of any of the children.

25. Each party must participate and continue to participate in and complete the “Keeping Contact” program run by Unifam at Sydney and for this purpose each party is to do the following:

    (a)comply with any appointment made by Unifam;

    (b)comply with all reasonable rules of Unifam;

    (c)comply with all reasonable requests or directions of the staff of Unifam including referrals to complementary programs and/or services; and

    (d)facilitate the children’s attendance upon a counsellor or therapist at Unifam if so requested by the staff of Unifam.

26. As part of the parties’ participation in the “Keeping Contact” program with Unifam, each party is to seek advice and assistance from the relevant counsellor or therapist at Unifam regarding the child Z’s relationship with the mother with a view to improving or repairing this relationship, and for this purpose:

    (a)each party must comply with all reasonable requests or directions of the counsellor or therapist, including referrals to complementary programs or services; and

    (b)the father must facilitate Z’s attendance upon the counsellor or therapist until assessed otherwise by the counsellor or therapist.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7485 of 2014

MS PANOS

Applicant

And

MR PANOS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for interim parenting orders in respect of the parties’ three daughters, Z, X and Y. The eldest child, Z, aged 14 years, lives with the father, who is the Respondent, whilst X, aged 10 years, and Y, aged 7 years, continue to live with the Applicant mother.

2. Counsel for the father, Ms Petrie, has submitted that the parties are in “dire need of parenting orders”. There is some force to that submission.

Background

1. The parties were married on (omitted) 1996 and separated on 28 August 2013. There are three children of the marriage:

   a)Z, who was born on (omitted) 2001;

   b)X, who was born on (omitted) 2005; and

   c)Y, who was born on (omitted) 2008.

2. The mother commenced proceedings for parenting and property orders by means of an Application and supporting documents filed on 28 November 2014.

3. The child Z left the mother’s residence and commenced living with her father after an incident on 25 February 2015.

4. An Independent Children’s Lawyer was appointed on 2 March 2015.

5. The parties and the three girls attended a Child Inclusive Child Dispute Conference on 27 April 2015. The Family Consultant reported that no agreements were reached and commented that the family “appears to be in crisis”. He suggested that the Court may benefit from ordering a Family Report for the purposes of a final hearing.

6. On 15 June 2015 the parties entered into some interim parenting orders by consent. They also entered into some interim property orders.

7. The interim parenting Orders of 15 June 2015 provided that Z should live with the father and the two younger girls should continue to live with the mother.  

Evidence and Submissions

1. The mother relied on her affidavit of 1 June 2015. The father relied on his affidavit of 2 June 2015.

2. The Independent Children’s Lawyer, to assist the parties, prepared a detailed Minute of Proposed Orders. Ms Petrie of Counsel, for the father, told the Court that her client would consent to orders in that form, in their entirety. Ms Coulton of Counsel, for the mother, said that her client would agree with most of the proposed orders but had separate proposals in respect of two issues.

3. The areas of difference between the parties related to the proposed orders 8 and 12 of the ICL’s Minute. The mother produced a handwritten minute setting out alternative proposals.

4. The proposed Order 8 deals with the time that X and Y should spend with the father, both during the school term but also in the school holidays. The Independent Children’s Lawyer drafted the proposed orders to coincide with the father’s work roster as a (occupation omitted) for (employer omitted), providing for the children to spend two consecutive weekends with their father, whilst the mother prefers the more conventional arrangement contained in the consent Orders of 15 June 2015.

5. Counsel for the mother submitted that the arrangements in the 15 June consent Orders work well and should continue. Counsel for the mother did not agree, submitting that the mother would not allow any flexibility in the arrangements and stuck rigidly with the terms of the Orders.

6. As for school holiday time, there was a general agreement that school holidays should be shared equally, but there was a difference between the parties over the Christmas/January long school holidays.

7. The father agreed with the proposal that the Christmas/January holidays should be divided equally in two blocks. Ms Petrie submitted that for the forthcoming holidays, the father had arranged leave from his work from 1 to 27 January 2016 inclusive. He wishes to take the children for a holiday on the (omitted) of New South Wales.

8. The mother, on the other hand, was of the view that a period of more than a week at a time with the father and away from her would be difficult for the two younger girls to cope with, and submitted that a week about arrangement would be more in the children’s best interests.

9. Mr Christaki, the Independent Children’s Lawyer, expressed the view that the children were of an age that half of the long school holidays would not be detrimental to the girls, but stated that he would not oppose an arrangement where the holidays were divided into blocks of one week, one week, two weeks and two weeks.

10. Ms Petrie told the Court that the father would agree to that alternative proposal.

11. The Independent Children’s Lawyer had proposed an arrangement for telephone contact where telephone conversations would take place between 7:00 pm and 7:30 pm on Mondays, Wednesdays and Thursdays, and Tuesdays, Thursdays and Saturdays. This was opposed by the mother as being too restrictive. Her submission was that the parties should have liberty to telephone the children at all reasonable times without specifying any particular times. This had been the arrangement up to the date of hearing and the mother believed that it worked satisfactorily.  In reply, Counsel for the father submitted that the arrangements had not been working satisfactorily and a more defined structure was needed.  

Applications for Parenting Orders

1. When a court is considering making parenting orders, it must have regard to the matters contained in Part VII of the Family Law Act 1975 (Cth). In particular, the court should have regard to sections 60B, 60CA, 60CC, 61DA and, where appropriate, section 65DAA. All of these matters have been considered, so far as they are relevant.

Conclusions

1. Noting the high degree of conflict between the parents, I am more of the view that the orders proposed by the Independent Children’s Lawyer are well-considered and generally appropriate. If, as the mother submits, the Interim Consent Orders of 15 June 2015 are working well, why are the parties involved in an interim parenting hearing? I am more of the view that Counsel for the Respondent has accurately described the situation as showing “a dire need for parenting orders”.

2. Parenting orders that coincide with the father’s work roster would appear to be in the children’s best interests. There appears to be no good reason why the children should not spend two consecutive weekends with their father.

3. In respect of the Christmas/January school holiday period, there appears to be some merit to the alternative proposal of dividing the holidays not into alternate weeks but blocks of one week each followed by a longer period. It is hard to see why the children should have to spend alternating weeks with their father during this time. I agree with the submission of the Independent Children’s Lawyer that a longer period of time with their father would not be detrimental to girls of these children’s ages.

4. I am mindful of the fact that the father has arranged leave from his employment from 1 January to 27 January, which takes up the time until the school holidays finish. Clearly, the time for the children to be in their father’s care should be during January, when he is off work.

5. I intend to order that the children should spend the forthcoming school holidays with their parents as follows:

   a)From 17 December, the commencement of the school holidays, until 31 December 2015 with the mother;

   b)From 1 January 2016, the commencement of the father’s leave from work, until 8 January, with the father;

   c)From 8 January to 15 January with the mother; and

   d)From 15 January until 26 January, Australia Day, with the father.

6. School goes back after Australia Day.

7. Subsection 61DA(3) of the Family Law Act 1975 provides that when the Court is making an interim order, the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them applies, unless the Court considers that it would not be appropriate in the circumstances. I am of the view that an order should be made for equal shared parental responsibility until further order.

8. I have considered the matters in s. 65DAA of the Family Law Act 1975. I am not satisfied that it would be reasonably practicable for the children to spend equal time with each of the parents, except during the school holidays. The orders proposed go a fair way towards substantial and significant time with each parent, which I consider to be both reasonably practicable and in the children’s best interests.

1. I agree with the suggestion of the Family Consultant that the Court would be assisted at a final hearing by a Family Report under the provisions of s.62G of the Act, and I will order accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  14 December 2015