Pethes & Pethes

Case [2024] FedCFamC1F 213

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pethes & Pethes [2024] FedCFamC1F 213

File number(s): NCC 2706 of 2021
Judgment of: SMITH J
Date of judgment: 16 February 2024
Catchwords: FAMILY LAW – CHILDREN – issues narrowed a Trial – most orders by consent – sole issue whether three older children’s time with father should be increased by one day school day per fortnight in term time – issue of disruption to current settled regime – two of three children do not want any change – risk of change outweighs marginal possible additional benefit - on balance no change ordered.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss, 60CA, 60CC, 60CG, 65DAA, 68B)
Cases cited:

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

B & B (1993) 16 Fam LR 353; [1993] FamCA 143

Carlson & Fluvium [2012] FamCA 32

Division: Division 1 First Instance
Number of paragraphs: 96
Date of hearing: 12–15 February 2024
Place: Newcastle
Counsel for the Applicant: Mr Spicer
Solicitor for the Applicant: The Family Law Co
Counsel for the First Respondent: Mr Allen
Solicitor for the First Respondent: Walker Family Law
Second Respondent: Litigant in person
Third Respondent: Litigant in person
Solicitor-advocate for the Independent Children's Lawyer: Ms McMullen
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

NCC 2706 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS B PETHES

Applicant
AND:

MS C PETHES

First Respondent

MR BODART

Second Respondent

MR VICARIO

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

16 FEBRUARY 2024

THE COURT ORDERS, BY CONSENT AND ON A FINAL BASIS:

1.That all previous Orders be discharged.

2.That the children, W born 2012, X born 2013, Y born 2015 and Z born 2017 live with the maternal grandmother.

3.That Ms C Pethes (“the maternal grandmother”) and Mr Bodart (“the second respondent father”) have equal shared parental responsibility for the children, W, X and Y provided that they:

a.notify Ms B Pethes (“the mother”) of any proposed decision relating to the long-term care and welfare of the children, including but not limited to:

i.proposed decisions about which schools the children shall attend;

ii.proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children; and

iii.ensure that such notification is given to the mother in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;

b.take into consideration any views expressed by the mother in respect of such proposed decision

4.That the maternal grandmother have sole parental responsibility for the child, Z provided that she:

a.notify the mother and Mr Vicario (“the third respondent father”) of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:

i.proposed decisions about which schools the child shall attend;

ii.proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long…

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AGLC
Pethes & Pethes [2024] FedCFamC1F 213
Case
[2024] FedCFamC1F 213
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with a complex family law case involving the children of two former couples, W, X, Y, and Z. The primary dispute centred on whether the time the three older children, W, X, and Y, spent with their father, Mr Bodart, should be increased by one day per fortnight during term time. The maternal grandmother, who has primary care of the children, opposed this change, citing potential disruption to the children’s settled routine. Two of the three older children also expressed a clear desire not to have their time with their father altered. The court was required to balance the statutory criteria for determining the best interests of the children against the potential benefits of changing the visitation schedule.

In its reasoning, the court emphasised the importance of maintaining a stable and consistent routine for the children, given their traumatic past and the significant role the maternal grandmother has played in their wellbeing. The court noted that Mr Bodart had initially sought visitation terms that were more focused on his own needs rather than the children's best interests, although this position had evolved by the time of the trial. The court acknowledged the substantial positive changes in Mr Bodart’s life but found that the risk of destabilising the children’s current routine outweighed the marginal potential benefits of altering the visitation schedule. The court also considered the views of the two older children who did not want any change to their time with their father. Ultimately, the court decided that the potential for disruption and the children’s expressed wishes were compelling enough to maintain the status quo.

The court's final orders largely maintained the existing arrangements, with some minor modifications agreed upon by the parties. The children continued to live with the maternal grandmother, and the visitation schedules for the parents were largely unchanged. The court also included provisions for supervised visits in case of any future disputes regarding breaches of the orders. The decision reflects a cautious approach, prioritising the children's stability and wellbeing over potential, albeit marginal, benefits of a change in their visitation schedule.

Orders

Orders of the court

NCC 2706 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS B PETHES

Applicant

AND:

MS C PETHES

First Respondent

MR BODART

Second Respondent

MR VICARIO

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

16 FEBRUARY 2024

THE COURT ORDERS, BY CONSENT AND ON A FINAL BASIS:

1. That all previous Orders be discharged.

2. That the children, W born 2012, X born 2013, Y born 2015 and Z born 2017 live with the maternal grandmother.

3. That Ms C Pethes (“the maternal grandmother”) and Mr Bodart (“the second respondent father”) have equal shared parental responsibility for the children, W, X and Y provided that they:

a. notify Ms B Pethes (“the mother”) of any proposed decision relating to the long-term care and welfare of the children, including but not limited to:

i. proposed decisions about which schools the children shall attend;

ii. proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children; and

iii. ensure that such notification is given to the mother in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;

b. take into consideration any views expressed by the mother in respect of such proposed decision

4. That the maternal grandmother have sole parental responsibility for the child, Z provided that she:

a. notify the mother and Mr Vicario (“the third respondent father”) of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:

i. proposed decisions about which schools the child shall attend;

ii. proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child; and

iii. ensure that such notification is given to the mother and third respondent father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;

b. take into consideration any views expressed by the mother and third respondent father in respect of such proposed decision

5. That W, X and Y spend time with the mother as follows:

a. One weekend per month from 10:00am Saturday to 3:00pm Sunday when W, X and Y are not spending time with the second respondent father and when Z is spending time with the mother;

b. At all other times as agreed with the maternal grandmother;

c. That the mother be present at all times to supervise the children.

6. That notwithstanding any other order, the children spend time with the parties for Christmas in odd numbered years on an alternating basis:

a. In the first year from 12noon Christmas Eve to 3pm on Boxing Day with the mother

b. In the second year from 12noon Christmas Eve to 3pm on Boxing Day with maternal grandmother

7. That notwithstanding any other order, if Mother’s Day falls on a day when the mother does not otherwise have care of the children, the children shall spend time with the mother from 9 am until 3 pm on Mother’s Day

8. That notwithstanding any other order, if Father’s Day falls on a day when the second respondent father does not otherwise have care of the children, W, X and Y shall spend time with him from 9 am until 3 pm on Father’s Day

9. That notwithstanding any other order, if Father’s Day falls on a day when the third respondent father does not otherwise have care of Z, she shall spend time with him from 9 am until 3 pm on Father’s Day

10. Unless otherwise stated or agreed, changeover will take place with the parents collecting the children from and returning to the children to the home of the maternal grandmother.

11. That Z have telephone or Facetime communication with the mother and/or third respondent father each Wednesday between 6pm and 6:15pm with the mother and/or third respondent father to call the maternal grandmother.

12. That changeover will take place with the mother collecting Z from and returning her to the home of the maternal grandmother unless otherwise agreed in writing.

13. The maternal grandmother and second respondent father are to keep the other informed at all times of any medical, dental or other health related treatment being undertaken by the children, W, X and Y, including the name and telephone number of the treating dental, medical or other professional, details of all scheduled appointments and details of any prescribed medication.

14. Each party is to authorise any medical, dental or allied health professional who treats the child to speak with both parties about the child’s health and medical treatment, including providing both parties with copies of any reports or other information.

15. Each party is to advise the other as soon as practicable upon the happening of any of the following:

a. The children becoming seriously ill;

b. The children becoming hospitalised;

c. The children being involved in an accident;

d. The children requiring professional advice regarding a significant medical, mental health or dental condition.

16. All parties are restrained from denigrating the other party or any member of the other parties’ family or household in the presence or hearing of the children and as far as possible from allowing any other person to denigrate the other party or any member of the other parties’ family or household in the presence or hearing of the children, including, but not limited to social media.

17. All parties are restrained from discussing with or questioning the children about the current family law proceedings, any past or present conflict between the parents or the children’s preferred living and spend time with arrangements.

18. Each of the parties are authorised by these Orders to attend functions and public events relating to any school or extra-curricular activity in which the children, or any of them, are involved and to which parents and/or members of the community are normally invited.

CONSENT NOTATIONS

A. The parents will as far as possible ensure that the children meet all their extra-curricular and social engagements during the time the children are spending with them and they will endeavour, where possible, that it will be that parent or a person well known to the children who transports them to and from these engagements.

B. That it is intended that the mother and third respondent father will attend an extra‑curricular activity with the children and the maternal grandmother at least once a week by agreement.

THE COURT FURTHER ORDERS ON A FINAL BASIS:

19. That W, X and Y spend time with the second respondent father as agreed with the maternal grandmother and failing agreement, as follows:

a. During school term each alternate weekend from 5pm on Thursday until 5pm Sunday;

b. For the first half of the school holiday periods being the first half in even numbered years and the second half in odd numbered years; and

c. At all other times as agreed with the maternal grandmother.

d. For the purpose of this order the second respondent father shall collect W, X and Y from the residence of the maternal grandmother at the commencement of time, and the maternal grandmother shall collect the children at the conclusion of time.

20. That Z spend the following time, and any other time, with the applicant and third respondent father as follows:

a. Two weekends per month from 10:00am Saturday to 3:00pm Sunday:

i. When W, X and Y are not spending time with the Second Respondent;

ii. On one weekend when W, X and Y are with the Second Respondent;

b. At all other times as agreed with the First Respondent Maternal Grandmother.

c. That the mother be present at all times to supervise the children.

d. That changeover will take place with the mother collecting Z from and returning her to the home of the maternal grandmother unless otherwise agreed in writing;

e. The Third Respondent Father is restrained by injunction from spending any time with Z other than in accordance with these orders unless as agreed in writing by the mother and the maternal grandmother.

21. In the event the maternal grandmother forms the genuine belief that the mother or third respondent father has breached the orders requiring supervision, the maternal grandmother may give the mother and third respondent father a written notice alleging that a breach or breaches have occurred (“the Notice”).

a. On the giving of the Notice all of the children’s unsupervised time with the mother, and third respondent father pursuant to these Orders, shall be suspended.

b. The maternal grandmother may supervise the children’s time with the mother, and or with the third respondent father, if she chooses.

c. On the giving of the Notice the children shall spend supervised time with the mother, and or third respondent father, at a Contact Centre selected by the maternal grandmother, from the first available opportunity, on not less than a fortnightly basis for a period of two (2) hours, unless unavailable, and for that purpose:

i. within seven (7) days of the giving of the Notice the maternal grandmother shall identify a Contact Centre and each party shall do all acts and things and sign all documents reasonably necessary to undertake whatever reasonable intake procedures are required of them and thereafter adhere to the rules of the Contact Centre; and

ii. The mother and third respondent father shall jointly pay the costs of the Contact Centre.

22. If the mother and or third respondent father disputes the Notice either or both of them may file an Application to determine the alleged breach.

23. The children’s time with the mother and or third respondent father shall be supervised time at the Contact Centre until such time as the Court makes further orders.

Costs

24. If any party seeks costs they are to file an Application in accordance with the Rules.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I note that it would be difficult to praise the maternal grandmother, and the maternal grandfather who supports her, too highly. But for her noble intercession, it is difficult to imagine that any of these children would be doing as well as they are today, despite the best efforts of the foster and care system.THE BACKGROUND The mother and Mr Bodart commenced their relationship in 2009 and separated on a final basis in or around December 2015, having had W, X and Y. During the relationship, both the mother and Mr Bodart had very poor mental health, engaged in extended drug and alcohol abuse and there was an associated history of family violence. In this context, the children suffered significant trauma. Taking into account the reasons underlying the principles outlined in Carlson & Fluvium [2012] FamCA 32 at [165]–[169] and Adamson & Adamson (2014) FLC 93-622 especially at [90]; I will not detail Mr Bodart’s history, but I must indicate that it is necessary to take it into account, and I consider it relevant when I assess whether to give greater weight to Mr Bodart’s or the maternal grandmother’s assessments of the older children’s current status and needs, and the extent to which each of them is considering primarily the children’s needs or their own desires in relation to the outstanding issue. Having said that, I note that Mr Bodart has fundamentally turned his life around and is now a committed father who is making living amends to his children through his involvement in their lives. He is to be congratulated for achieving this extremely difficult task, which many attempt, but in which few succeed. Mr Vicario and the mother commenced their relationship in or around early 2016. Their three children are Z, E and F. Mr Vicario and the mother have separated on a number of occasions. While they both deny the presence of family violence in their relationship it is common ground that the mother relied upon emergency accommodation, even during the course of these proceedings. I note that, as is relevant to an understanding of why I make the consent orders I make for Z, those orders for Z having been agreed at the very end of the trial. Having said that, I also wish to point out that I am satisfied that both the mother and Mr Vicario have also made great strides in their personal development, and let us be hopeful they continue to work on their mental health, their relationship, and their parenting skills, for the benefit not only of Z, but for E and F. The prior proceedings were commenced by the maternal grandmother in 2016. The final judgment and orders were delivered and entered on 19 March 2019 and included orders:(1)that the children live with the maternal grandmother; (2)the maternal grandmother and Mr Bodart have equal shared parental responsibility for W, X and Y; (3)the maternal grandmother and Mr Vicario have equal shared parental responsibility for Z; (4)that W, X and Y spend time with Mr Bodart each alternate weekend from 5 pm Friday to 5 pm Sunday and half school holidays and on Father’s Day; (5)that Z spend time with Mr Vicario on an incremental basis, ending with three days and two nights each week and for one half of school holidays when she commenced school; (6)that the mother spend time with the children as agreed between her and the maternal grandmother and supervised by the maternal grandmother; and(7)there were a variety of restraints against the mother, Mr Bodart and Mr Vicario, from using illegal substances or consuming alcohol to excess prior to spending time with the children and also standard orders regarding non-denigration.THESE PROCEEDINGS

Evidence

Evidence Before The Court

Whilst Mr Bodart, and the mother, very sensibly changed their positions at trial, I accept the submission of counsel for the maternal grandmother that when weighing who is more child focused and more likely to be in a position to know what is presently best for the older children, it is relevant to take into account that right up until the trial commenced Mr Bodart was seeking orders which were clearly not, as I will explain, child focused, and which appeared to be focused far more on meeting his emotional needs than on doing what was best for the children. The fact that that changed at trial was good, but it would be naïve to pretend that his position was not self rather than child focussed right up until the trial commenced.TRIAL AND EVIDENCE The mother, maternal grandmother and ICL were legally represented, including by counsel or solicitor advocate. Mr Bodart and Mr Vicario appeared for themselves. The ICL provided the court book volume 1 of 779 PDF pages on behalf of the parties, containing the documents, MFI 1, and a court book volume 2 of 335 pages and MFI 2 of other documents. The applicant mother read, or relied upon, the following documents at trial:(1)Amended initiating application of 4 August 2023;(2)Affidavit of Ms B Pethes affirmed 4 August 2023;(3)Applicant Mother’s Case Outline filed 6 February 2024 (4 Pages); and(4)Applicant Mother’s Written Submissions filed 6 February 2024 (5 Pages). The maternal grandmother read or relied upon:(1)Amended response to final orders filed 4 August 2024;(2)Affidavit of Ms C Pethes affirmed 4 August 2023; and(3)First Respondent’s Written Submissions filed 7 February 2024. Mr Bodart read or relied upon:(1)Response to final orders filed 21 October 2021;(2)Affidavit of Mr Bodart affirmed 4 August 2023; and (3)Affidavit of Ms H affirmed 4 August 2023. Mr Vicario read or relied upon:(1)Response to final orders filed 24 November 2022;(2)Affidavit of Mr Vicario filed 4 August 2023;(3)Affidavit of his sister, Ms S, filed 4 August 2023; and (4)Third Respondent’s submission bundle filed 6 February 2024. The ICL relied upon the following documents at trial: (1)Child Impact Report by Ms D dated 30 November 2021, Exhibit ICL1;(2)Family Report prepared by Ms D dated 30 May 2022, Exhibit ICL2; (3)Single expert report by Dr R, a psychiatrist who examined Mr Vicario, dated 12 May 2023, Exhibit ICL3; (4)Judgment of her Honour Judge Costigan dated 19 March 2019 Exhibit ICL4; and (5)ICL Case outline filed 6 February 2024. There were various documents tendered during the Trial. I refer to these as necessary. The mother, the maternal grandmother, Mr Bodart, Mr Vicario and the expert were required for cross-examination and gave oral evidence. Ms H, Ms S, and Dr R were not required for cross-examination.THE EXPERT REPORTS The expert saw the parties and children on two occasions. She had access to extensive material and provided the Child Impact Report and the Family Report, as referred to elsewhere. It is unnecessary to detail the extensive contents of her opinion given the narrow issue remaining. I nevertheless set out her recommendations:156.Given concerns about [Mr Vicario’s] reported mental health decline in response to the CCE’s previous assessment, consideration may need to be given to the conditions under which this report is released.157.It is recommended that the maternal grandmother and [Mr Bodart] have shared parental responsibility for [W], [X] and [Y].158.It is recommended that the maternal grandmother has sole parental responsibility for [Z].159. It is recommended that [W], [X], [Y] and [Z] live with the maternal grandmother.160. It is recommended that [W], [X] and [Y] spend time with [Mr Bodart] alternate weeks from after school Wednesday to 5pm Sunday, and additional time during holidays and special occasions.161. It is recommended that [W], [X], [Y] and [Z] spend time with the mother one Saturday per month from 10am and 4pm, and additional time as negotiated between the mother and maternal grandmother.162. It is recommended that [Z] also spends time with the mother each Friday from 10am to 4pm until she commences school, and that this time not occur in the presence of [Mr Vicario].163.If the Court finds that [Z] should spend time with [Mr Vicario], consideration could be given to her spending no more than four hours per month either formally supervised or in the presence of the mother and/or maternal grandmother.164. Consideration could be given to the Court releasing a copy of this report to the Department of Communities and Justice.Z

Decision

Reasons for decision

I am satisfied that the order I propose is one least likely to lead to institution of further proceedings in relation to the older children.CONCLUSION On the narrow single issue before me, having considered the evidence and noting the findings I have made, in applying the statutory criteria, I find that the risks to the older children of destabilising their routine by ordering a change to Wednesday at this time outweighs the additional marginal potential benefit to the children of making such an order. I find that there is a risk that if the time is changed, and is not in the children’s best interests, Mr Bodart and the maternal grandmother will not be able to negotiate a reduction. In those circumstances I will not change the current commencement time from Thursday to Wednesday. Otherwise I make the consent orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.