Pappas and Kosta

[2014] FCCA 1283

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAPPAS & KOSTA [2014] FCCA 1283

Catchwords:
FAMILY LAW  ̶  Whether children’s time with father should be reduced because of children’s views   ̶  whether reducing children’s time with father will promote relationship.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 62B, 65DA, 68R

Applicant: MS PAPPAS

Respondent: MR KOSTA

File Number: MLC 3817 of 2010

Judgment of: Judge Phipps

Hearing dates: 12 & 13 June 2014

Date of Last Submission: 13 June 2014

Delivered at: Dandenong

Delivered on: 19 June 2014

REPRESENTATION

Counsel for the Applicant: Mr Hutchins

Solicitors for the Applicant: CE Family Lawyers

The Respondent: Appearing in person

ORDERS

1. That all previous orders be discharged.

2. That the mother and the father have equal shared parental responsibility for the children [X] born [in] 2002 and [Y] born [in] 2002 (“the children”).

3. That the children live with the mother.

4. That the children spend time and communicate with the father as follows:

   (a)Each alternate weekend from 10.00am Saturday or the conclusion of [omitted] if changeover cannot take place at 10.00am because the children are playing [omitted] until the commencement of school Monday morning or 9.00am in the event that it is a non-school day;

   (b)Each Wednesday from the conclusion of school or 3.30pm if a non-school day until 6.30pm;

   (c)On the children’s birthday from 3.30pm until 7.00pm if a school day and from 10.0am until 2.00pm if a non-school day;

   (d)On the father’s birthday from 3.30pm until 8.30pm if a school day and from 10.00am until 7.00pm if a non-school day;

   (e)On Father’s Day from 10.00am until 7.00pm;

   (f)On Christmas Day from 4.00pm until 4.00pm Boxing Day;

   (g)During school holidays;

   (i)In the short term holidays by agreement and in default of agreement commencing 10.00am Saturday in the second week until 10.00am the following Saturday;

   (ii)Subject to paragraph 4(f) in the long term summer holidays by agreement and in default of agreement commencing 10.00am Saturday in the second week until 10.00am the following Saturday and this will continue week about until 10.00am on the Saturday prior to the commencement of school;

   (iii)The parties acknowledge and accept that all time in this paragraph (g) is subject to the children’s views.

   (h)At such further or other times as may be agreed between the parties.

   (i)The time pursuant to paragraphs 4(a) and (b) shall be suspended during school holidays and continue after school holidays as if the holidays had not occurred.

5. That the father’s time pursuant to order 4 be suspended as follows:

   (a)On the children’s birthday from 2.00pm until 7.00pm on a non-school day;

   (b)On the Mother’s birthday from 3.30pm until 8.30pm if a school day and from 10.00am until 7.00pm if a non-school day;

   (c)On Mother’s Day from 10.00am until 7.00pm;

   (d)Each Christmas Eve from 4.00pm until 4.00pm Christmas Day.

6. Changeover shall take place at the mother’s home when the children are not at school, until the mother is certified as being able to drive by her treating doctor. Once certified the father will collect the children at the commencement of time from the mother’s home and the mother will collect the children at the cessation of time from the father’s house.

7. That until further order the mother and the father be restrained from leaving the children or either of them unsupervised by an adult during any period they are in their care.

8. That the father and the children continue to obtain counselling from [omitted] Family Relationship Centre or as recommended by the counsellor.

9. The parties shall exchange information concerning the children by way of text message and a communication book.

10. The parties provide a copy of these orders to any school the children may attend.

11. The parties do all such acts and things and sign all such documents to request and authorise any school at which the children attend from time to time, to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information in relation to the children’s education to both parents.

12. That the mother and the father both be permitted to attend all school activities including concerts, plays, excursions, parent-teacher interviews and the like normally attended by parents at school.

13. The parties shall immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars of any treatment received by the children, together with the name and address of the treatment provider and/or location at which the child/ren are a patient.

14. The parties shall each make available to the other any medication prescribed for the children to enable the other to administer such medication to the children and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the children is living or spending time.

15. That the parties shall notify the other, with no less than seven (7) days prior written notice and particulars of any change of residential address, telephone numbers, email address or other contact details.

16. That the parties immediately sign a passport application for the children.

17. That the parties shall do all things necessary and sign all such documents to acquire and maintain the currency of the children’s passports if required and the party requiring travel overseas shall pay the associated passport costs to issue or maintain the passports of the children. Should the other party require travel overseas with the children, half of the costs to issue and maintain the children’s passports shall be paid to the originating party at that time.

18. That notwithstanding order 4(g) the parties be permitted to travel overseas with the children subject to and conditional upon:

    (a)Not less than 28 days prior to the intended date of departure providing the non-travelling parent with a comprehensive itinerary in writing including a contact number upon which the children and the travelling parent can be contacted and return airline tickets for the children and the travelling parent;

    (b)Such travel shall be for a period of no more than three weeks, unless otherwise agreed in writing;

    (c)The non-travelling parent shall be entitled to “make-up-time” with the children that is commensurate to that missed whilst the children are away;

    (d)That each parent do all things necessary and sign all such other documents as may reasonably be required to enable the children to travel;

    (e)The other party will provide written consent upon receiving all the above information.

19. Until further order each party, their servants and/or agents be and are hereby restrained from:

    (a)Denigrating each other to the children or speaking with the children or to any other person in the children’s presence, in derogatory terms about the other party or members of the other party’s household;

    (b)Removing the children from the Commonwealth of Australia without the written consent of the other party or a court order;

    (c)Assaulting, intimidating, molesting, harassing, threatening or in any way interfering with each other or the children;

    (d)Leaving the children unattended between the hours of 8.00pm and 7.00am until they are fourteen (14) years of age;

    (e)Using physical force to discipline the children.

20. That in the event that the parties are unable to resolve any issues or disputes that may arise between them which may result in non-compliance with any of the orders set out herein, the parties shall attend upon a qualified Family Dispute Resolution practitioner for the purposes of mediation and resolution of issues between them.

21. In the event that the parties cannot agree upon an appropriately qualified Family Dispute Resolution practitioner, then the parties may personally or jointly request three (3) names from the Law Institute of Victoria.

AND THE COURT NOTES:

1. That pursuant to ss.65DA(2) and 62B 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 Annexure A and these particulars are included in these orders.

2. That the mother and the father ensure that the children have access to the internet where possible, during all periods of living with them so that the children are able to do their homework.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 3817 of 2010

MS PAPPAS

Applicant

And

MR KOSTA

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties have two children [X] and [Y] both born [in] 2002.  They are twelve and a half years old and in Year 12 at [M] School.  The parties agree that the parties have equal shared parental responsibility for the children, that the children live with the wife and they agree the children will spend half school holidays with the husband, week about during the summer holidays.  They have agreement on time on special occasions.

2. The mother proposes that during term time the children should spend time and communicate with the husband each alternate week from 1.00pm Saturday until the commencement of school on Monday morning or 9.00am in the event that it is a non-school day, and either each Wednesday from the conclusion of school or 3.00pm on a non-school day until 6:30pm, or each alternate week from the conclusion of school or 3.00pm on a non-school day on Wednesday until before school or 9.00am on a non-school day on Thursday.

3. The current arrangements are in an interim order made 24 September 2013 which provides for the children to spend time with the father from Friday after school until the commencement of school on Monday each alternate weekend, in the week immediately following this weekend from after school Wednesday until the commencement of school on Thursday and each alternate Monday from the conclusion of school until the commencement of school the next day.  The husband proposes the children spend time with him from after school Thursday until before school Monday each alternate weekend.

4. The wife was born on [omitted] 1965 she is aged 49.  The husband was born in [omitted] 1968.  He is aged 46.

5. The parties commenced cohabitation in 1993, married on [omitted] 1995, separated under one roof in November 2004 and physically separated when the husband left the matrimonial home in August 2005.  They were divorced on 20 May 2010.  The twins, [Y] and [X] were born on [omitted] 2002.  They are now aged twelve and a half.

6. On 15 May 2007 the parties entered into consent orders for them to have equal shared parental responsibility for the children, for the children to live with the wife and spend time with the husband:

   a)Each alternate weekend from the conclusion of school Friday until the commencement of school Monday;

   b)Each alternate Thursday from the conclusion of school until 7:30pm;

   c)Each alternate Monday from the conclusion of school until the commencement of school on Tuesday;

   d)On special days and half school holidays.

7. Initially the Thursday time did not always occur and in 2010 was changed to Wednesday night.

8. The wife says that in 2011 the children started experiencing nightmares and bedwetting after returning from the husband and she took them to a psychologist Dr S who they attended until 1 February 2014.  Since then they attended counselling at a Family Relationship Centre.

9. The catalyst for the current proceeding was an incident on 5 August 2013.  The children were spending time with the husband.  After they went to bed, around 9.00pm, the husband went to a nearby friend’s residence to help move furniture.  He says he asked the children, who were aged eleven and a half at this stage, if it was all right if he left them alone and he says they said it was.

10. There was a storm and the children, particularly [Y], became frightened.  The wife had told them to telephone her if the husband left them alone and they did.  She told them to telephone the husband.  The husband had left the children with a telephone so that they could call him.  They did so. The husband says he had a new mobile telephone and he did not realise that it was diverted to his work office telephone.  The children telephoned the wife again, she telephoned police and she eventually went and collected the children and took them to a police station.

11. On 6 August 2013 the wife applied for an interim intervention order at the State Magistrates Court – [suburb omitted] and the order was granted ex parte with the children listed as affected family members. The interim order included a suspension pursuant to s.68R of the Family Law Act 1975 (Cth) of the current parenting orders and an interim order for the children to spend time with the husband each Saturday from 10.00am until 5.00pm with collection and delivery inside McDonald’s Family Restaurant, [omitted]. The order provided that no overnight access should occur until further order of a court. The order provided, in accordance with s.68R that it would end when the interim intervention order ended or 21 days from the date when the interim order was made.

12. The wife commenced these proceedings with an application filed on 15 August 2013.  On 24 September 2013 after a contested interim hearing I made orders:

    a)That the children live with the mother;

    b)That the children spend time with the father;

    i)From Friday after school until the commencement of school on Monday each alternate weekend;

    ii)In the week immediately following the weekend referred to in (i) above from after school Wednesday until the commencement of school on Thursday;

    iii)Each alternate Monday from the conclusion of school until the commencement of school the next day;

    iv)That when the children spend time with the husband he not leave the children unattended except for minor household tasks.

13. On 28 January 2014 I ordered the preparation of a family report.

    
    

    Ms May prepared the report dated 8 May 2014.  She interviewed the husband, the wife and the children and observed the children with each parent on 17 April 2014.

14. The parties agree that there be an order that they have equal shared parental responsibility for the children, so continuing the regime agreed in the consent orders of May 2007. Section 65DA of the Family Law Act1975 (Cth) requires that I consider whether equal time, or if not equal time substantial and significant time is in the best interests of the children and reasonably practicable. Neither party proposes equal time and as appears from my assessment of the best interests considerations later in these reasons it is not in the best interests of the children. The father’s proposal best meets the requirements of substantial and significant time, but again, as appears from my consideration of the assessment of best interests considerations later in these reasons it is not in the best interests of the children.

15. Section 60B contains the objects and principles applicable to the parenting provisions of the Family Law Act1975 (Cth) and s.60CA provides that in making parenting orders the best interests of the children is the paramount consideration. The best interests considerations are set out in s.60CC.

16. The significant best interests considerations in this case are the first of the primary considerations, the benefit to the children of a meaningful relationship with each parent and the first two of the additional considerations, that is the views of the children and their relationship with each parent and other people.

17. The children are twelve and a half and their views must be taken into account.  They expressed clear views to Ms M.  The children were 12 years and three months when interviewed.  Ms M describes [Y] as a well presented, modern teenager.  Ms M says [Y] presented initially with some reserve, gaining in confidence as the session progressed.

18. [Y] told Ms M she was enjoying her first year at secondary school.  [Y] refers to her mother’s house as “home”.  When Ms M asked about this [Y] responded “it’s always been mum’s house”.  Ms M says [Y] maintains she has found it stressful going to her dad’s house, she enjoys returning to her mum.  [Y] insists she has always felt this way but now it is “really downhill”.  Ms M says [Y] states “I don’t want to be with my dad any more”

19. [Y] explained to Ms M that last year her dad frequently left them at home.  On Saturday morning he went to [sport omitted] from 7.00am to 12 noon.  In the evening he has gone out at 9.00pm and come home at midnight.  [Y] says they are in bed but can hear his car leaving.  Ms M quotes [Y] as saying “if he says he loves us, why not be with us”.  She feels “lonely” when they are at home alone.

20. [Y] told Ms M that she had not told her dad they do not like being left as he gets annoyed with them.  Ms M says [Y] became distressed and tearful saying “I was the one that told him not to go at night’, referring to 5 August 2013.  She says that her dad responded by telling her that Mum leaves them alone also.  [Y] said that the storm was bad they tried ringing their dad. He did not say sorry to them later. [Y] acknowledged to Ms M that after court proceedings started her dad had not left them alone at night.

21. [Y] statement that she was the one that told her father not to go out on the night of 5 August 2013 conflicts with the husband’s statement that he asked the children if they would mind being left alone and they said they wouldn’t.  I do not need to make a finding about what was said.  The important fact is that [Y], eleven and a half at the time, was frightened and that she now believes she told her father not to go out that night but he still did.

22. [Y] said to Ms M she did not like her dad “yelling”.  [Y] said her father gets really angry and yells at [X] “a lot”.  [Y] said that her dad has friends over on Fridays.  She described them as being nice.  She said they are behind the shed while she and her brother watch television in the house.  [Y] feels her dad “is excluding us… It feels lonely, he is meant to spend time with us.”

23. Ms M details other things that [Y] said.  Significant is that [Y] says being with her dad “feels like it is all about him”.  Ms M says [Y] continued talking tearfully, her main issue seeming to be “he excludes us.”  She said she gets on well with her mum, “everything is okay”.

24. The final paragraph of Ms M’s recording of her interview with [Y] is:

    In respect to parenting arrangements, [Y] does not want to spend any specified time with her father.  She wants to see him when she wants to and does not want to stay overnight.

25. Ms M describes [X] as a well presented modern teenager.  She says his speech was difficult to understand at times, and says he presents as lacking in self confidence.

26. Ms M said that reflecting on past years of spending time with each parent, [X] says that “overall it’s been ok” but “nothing has changed” at his dad’s home.  He said there is no entertainment, if they are not allowed to watch television, he gets bored.  He said his dad returns from [sport omitted] at 2.00pm on Saturdays when he also goes to the supermarket.

27. He said he does not feel bored at his mum’s house.  He maintains they were left alone at his dad’s “a lot” last year.  He said his dad had gone fishing at 1.00am and come back at 8.00am in the morning.  His dad said he could go with him and leave [Y] in the house.  He immediately thought this wrong as [Y] would be scared on her own.  He said his dad went to his friend’s place to watch soccer at night but is not doing that now.

1. [X] feels his dad favours [Y] over him.  He gets blamed even if his sister swears at him, “he doesn’t believe me”.  He gets yelled at about every two or three weeks, his dad can get “really angry.  Ms M says [X] struggled to recall any more positive aspects.

2. Ms M says [X] wants to see his dad, “when I want.”  He does not want to stay overnight, it’s “scary”.  He ran away from his dad’s home last year, about quarter of a kilometre.  His dad was really angry with him but then ran after him.  [X] thinks his dad is “selfish”.

3. Ms M observed the children with each parent.  They greeted their father amicably.  She describes the conversation becoming more engaged with the children looking at their father’s face, sharing jokes and laughing.  Ms M described a number of activities.  She says that the husband showed the twins how to shuffle cards.  He was focused and attentive; the twins seem comfortable and relaxed in a general sense without conveying a close attachment to their father.  Ms M says [Y] responded without enthusiasm when told the parenting arrangements would be resumed after Easter.  On separating the twins did not embrace their father.

4. Ms M says that the twins welcomed the mother into the room and engaged with her in an intimate family oriented manner.  In conclusion she said that they convey warmth and humour when interacting with their mother who is responsible and has an outgoing personality.

5. In an interview with the husband Ms M says that he acknowledged that when the twins were eleven-years-old he would leave them for periods of up to one and a half hours at a time and also when he coached [omitted] on Saturday mornings.  He said he would leave the twins asleep and go to a friend’s house to watch soccer.  Ms M says that in discussion the husband justified his actions and could see no real issue with going to a friends while the children were asleep.

6. In respect of leaving the children on 5 August 2013 the husband was of the view that the children rang their mother just three minutes after he left them.  He said he believed the twins should have told him if they had not wanted him to go and denies he was in a bad mood before he left.

7. The husband told Ms M that he believes his relationship with the children is good, that they get on well.  He said he believed that the children were managing well with the current arrangement although they may possibly prefer their time with him to be in a block of days.  He expressed concern that it was not in the twin’s best interests or “healthy” for them to have more time with their mother.  He considers that she is “overbearing… and controlling.”  He says he lets them have more freedom and they do more activities with him.

8. In her assessment Ms M said that in discussion with the husband over leaving the twins alone at night he presented as lacking in meaningful insight.  He did not appear to genuinely understand why he should not have left the twins alone.  Of the incident on 5 August 2013 she said the husband maintained he was not aware that the twins did not want him to leave them alone.  She says he seemed unaware they are frightened of storms, bringing into question the quality of his relationship with him.  She said he presented as having little empathy or understanding of the relevance of his actions and blamed the wife for fuelling the twin’s anxieties.

9. Ms M accepts that the twins stated desire to spend time with the husband in accordance with the wishes and not spend overnight time is genuine.  She is concerned that if that happened they would lose their relationship with their father and that would not benefit them.  She said as to their expressed views neither child presents as having any understanding of the longer term ramifications of significantly reducing their time with their father.  She said that in the short term, they feel no need to see him other than when they want to.  She said this may deny them the opportunity to reconnect with their father who cares for them but needs to find more appropriate means to demonstrate this.  She says this:

   The twins have expressed their views which need to be heard and acted upon.  However this writer is concerned that by reducing all overnight time and leaving the twins to determine when they will spend time with their father, the relationship will be significantly diminished and difficult to restore.

10. Consequently, she recommended a reduction in time which would provide the husband with the opportunity to become more effectively involved with the twins whilst reducing the stress at the current level of overnight time.  Her recommendation in the report that the time should commence after [sport omitted] on Saturday, midday to Monday morning was based on her belief that the husband was still attending [sport omitted] on Saturday mornings.  When informed of the husband’s evidence that he had not been attending [sport omitted] on Saturday mornings since February 2013 she concluded that perhaps the time could start earlier on Saturday morning.

11. Ms M, when asked which of the mothers proposals for mid-week time, overnight in alternate weeks or some time for a meal after school each week she favoured the latter although only just.

12. Ms M referred to a number of complaints the children had about their father’s home, inadequate comfort food provided for them after school, not being permitted to go to the fridge after meals and other issues.  She said that underpinning these complaints is the more concerning lack of emphatic, meaningful engagement between the twins and their father.  They feel undervalued and excluded.

13. The husband’s concentration on his own needs and lack of empathy for the children is demonstrated by his attitude to the incident on 5 August 2013 when he left the children to help a friend with moving furniture.  In his evidence at the hearing he said he now regrets it but that is not how he approached it with Ms M and not how he approached it in his affidavit filed just before the hearing.  He lacked understanding of how children, aged eleven and a half would feel being left alone at night particularly when it was stormy.  It demonstrates Ms M’s view of his lack of empathy for the children.

14. The same is true of the Friday nights when the father has friends over for a meal.  The children’s complaints to Ms M about feeling not cared for by their father are understandable but the father does not recognise this.  In his evidence of the hearing he said that his friends like coming over and the children enjoy the evenings.  Clearly, from what they told Ms M, they did not.

15. Another example is a day late in 2013 when [X] ran away.  The husband blamed [X] for an incident with [Y] and was angry with him, and yet it seems from [X] point of view [Y] had started whatever occurred.  Whatever the rights and wrongs between the children the father’s inability to deal with it shows a lack of ability to cope with normal sibling rivalry between twins of this age.

16. This is sufficient to conclude that what Ms M recommends and what the mother proposes is in the best interests of the children.  In particular I accept Ms M’s opinion that a reduction in time will promote the children’s long-term relationship with their father while the current arrangement or the father’s proposal likely will not.

17. The father puts his proposal for alternate weeks Thursday night to Monday morning, as consolidating his time with the children.  He argued that since seven nights together in school holidays is agreed four nights should be appropriate.  Ms M, when this was put to her, said that there is a difference between holiday time and school term time.  Holiday time is more relaxed, different to the work and routines of school term time.

18. While this is sufficient to determine what is in the children’s best interests, what is said above is relevant to the consideration of the ability of each parent to provide for the needs of the children including their emotional needs.  The wife is providing for all their needs.  There are difficulties in the husband providing for the emotional needs.

19. The parties’ financial contributions to the care of the children received some attention during the hearing.  The evidence about it does not assist in determining what is in the children’s best interests.

20. Given the order for equal shared parental responsibility I am required to consider whether what is proposed is reasonably practicable.  It is reasonably practicable.  The mother’s house is adjacent to the children’s school, [M] School.  The children travel to the husband’s residence by catching two trains.

21. The relationship between the parents is poor.  As was obvious in the hearing’ each is highly critical of the other.  Nonetheless they have made the practicalities of the current arrangement work and there is nothing in what the wife proposes which will alter that.

22. The children’s best interests are met by the mother’s proposal and it is reasonably practicable.

23. The children play [omitted] on Saturdays at varying times.  I will make the commencement of time 10.00am or the conclusion of [omitted] if changeover cannot take place at 10.00am because the children are playing [omitted].

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  19 June 2014