Remington & Stefanidis
[2023] FedCFamC1F 596
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Remington & Stefanidis [2023] FedCFamC1F 596
File number(s): MLC 6782 of 2021 Judgment of: MCGUIRE J Date of judgment: 3 July 2023 Catchwords: FAMILY LAW – PARENTING – Where the matter proceeded undefended – Where there was no appearance by the father – Where the father has not complied with procedural orders – Where the father has a limited relationship with the children – Allegations of family violence – Orders made for the mother to have sole parental responsibility and for the children to spend time with the father as agreed between the parties Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2)(3) Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 3 July 2023 Place: Melbourne Counsel for the Applicant: Ms Burgess Solicitor for the Applicant: Forty Four Degrees Solicitor for the Respondent: Litigant in person (did not participate) Counsel for the Independent Children's Lawyer: Ms Hutchings Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 6782 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REMINGTON
Applicant
AND: MR STEFANIDIS
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
3 JULY 2023
THE COURT ORDERS THAT:
1.All previous Orders in relation to parenting matters be discharged.
2.The matter proceed on an undefended basis.
3.The Applicant Mother have sole parental responsibility for the children X born 2015 and Y born 2019 (together “the Children”).
4.The Children live with the Applicant Mother.
5.The Applicant Mother shall inform the Respondent Father of any major long-term decision she makes for the Children pursuant to Order 3.
6.In relation to all matters relating to the Children, the parents communicate in writing via the ‘Our Family Wizard’ mobile application, or such other parenting mobile application as agreed by the parents in writing except in the event of an emergency in which event the parents may telephone each other.
7.The child X engage in counselling or therapy to support her emotional and psychological well-being as directed by the service provider for at least 6 months.
8.For the purpose of Order 7:
(a)the child X engage in counselling or therapy with C Mental Health Service; and
(b)the parents share equally the cost of X’s counselling or therapy.
9.For the purpose of Order 8(b), within 7 days of being provided with a receipt for the payment of a cost associated with X’s counselling or therapy from the other parent, the parent must reimburse the other parent for a one half share of the cost.
10.The Respondent Father notify the Applicant Mother in writing if he wishes to resume spending time with the Children.
11.In the event the Respondent Father notifies the Applicant Mother in writing that he wishes to resume spending time with the Children, the parents and the Children engage in therapeutic counselling with a suitably qualified psychologist for the purpose of supporting reunification between the Respondent Father and the Children as directed by the psychologist.
12.For the purpose of Order 11:
(a)within 14 days from the date of the Respondent Father’s notification to the Applicant Mother, the Applicant Mother shall provide a list of 3 psychologists to the Respondent Father;
(b)within 7 days from the date the Respondent Father receives the list from the Applicant Mother pursuant to Order 12(a), the Respondent Father choose a psychologist from the list for the parents to engage;
(c)the parents and the Children commence therapeutic counselling as soon as reasonably practicable;
(d)the cost of the Children’s appointments be shared equally between the parents;
(e)the parents be at liberty to provide a copy of the Family Report dated 5 September 2022 and the Department of Health and Human Services section 69ZW response dated 2 November 2022 to the psychologist; and
(f)the parents authorise the psychologist to liaise with any counsellor, psychologist or therapist engaged with the Respondent Father or the Children.
13.For the purpose of Order 12(b), within 7 days of being provided with a receipt for the payment of the cost of the Children’s appointments with the chosen psychologist from the other parent, the parent must reimburse the other parent for a one half share of the cost.
14.The parents follow the recommendations of the psychologist facilitating therapeutic counselling pursuant to Order 11 as to when and how best to reintroduce the Children to spending time with the Respondent Father under the supervision of the psychologist or a supervised contact service provider chosen by the Mother.
15.The cost of the Respondent Father’s supervised time with the Children, if any, be borne in full by the Respondent Father.
16.The Respondent Father spend unsupervised time with the Children during the day by agreement between the parties in writing provided that:
(a)the Respondent Father engages in counselling to support his emotional and psychological well-being as directed by the service provider;
(b)the psychologist chosen pursuant to Order 11 supports the Respondent Father spending unsupervised time with the Children;
(c)any counsellor, psychologist or therapist engaged with the Respondent Father supports the Respondent Father spending unsupervised time with the Children;
(d)any counsellor, psychologist or therapist engaged with the Children supports the Respondent Father spending unsupervised time with the Children; and
(e)the Respondent Father has successfully completed the following courses and programs:
(i)the ‘Men’s Behaviour Change Program’ program delivered by B Health Service;
(ii)the ‘Tuning in to Kids’ course delivered by D Organisation; and
(iii)the ‘Repair-enting’ program delivered by D Organisation.
17.Each parent shall inform the other parent as soon as reasonably practicable in the event of the Children or any of them while in their care being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness.
18.The Respondent Father is restrained from removing or taking possession of the Children other than in accordance with these Orders.
19.The Applicant Mother may apply for and/or renew a passport for the Children or any of them and travel internationally with the Children or any of them or allow the Children or any of them to travel internationally notwithstanding the consent of the Respondent Father has not been obtained.
20.The Applicant Mother shall advise the Respondent Father of any intention to travel overseas with the Children or any of them at least 30 days prior to the date of departure and shall provide all relevant documentation, including itineraries.
21.Both parents, their servants, and their agents be and is hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other and/or any member of their respective families in the presence and/or hearing of the Children or any of them and from knowingly allowing anybody else to do so; and
(b)discussing these family law proceedings and/or the parents’ intervention order proceedings in the presence and/or hearing of the Children or any of them and from knowingly permitting anybody else to do so save in accordance with these Orders.
22.Pursuant to section 65DA(2) and s.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 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.
23.The Order appointing the Independent Children’s Lawyer be discharged.
24.The Respondent Father pay the Applicant Mother’s costs of and incidental to this proceeding.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Remington & Stefanidis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCGUIRE J
These are parenting proceedings in respect of two children, X born 2015 which makes her eight years of age and Y born 2019, just three years of age.
The applicant is the mother. The respondent father has not attended at court. He has not complied with procedural orders for the filing of documents, and his relationship with his children and his relationship with his parenting responsibilities are dilatory.
I am asked to proceed undefended in this matter on behalf of the mother. The mother is represented by Counsel. The Court has the benefit of an Independent Children’s Lawyer who if I understand the submissions, does not oppose the matter proceeding undefended in the orders sought by the mother, if not going to the stage of actively supporting them, which I find slightly odd.
The background of the parties’ relationship is set out in a comprehensive case summary document which has benefitted the Court considerably. Relevantly, the parties commenced their relationship around 2012. They have been separated for some time. The children have habitually lived with their mother.
The orders that I am asked to make are parenting orders and that being the case I am to have the best interests of X and Y as my paramount consideration pursuant to section 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining those best interests I am to reference the parties’ proposal, in this case simply that of the mother’s given the absence of the father, to the probative evidence before me, again only coming from the mother, together with some reports, to the mandatory considerations under section 60CC(2) and (3) of the Act against the background of the objects and principles of the legislation set out at section 60B of the Act.
The mother relies on her affidavit material. She relies heavily on the Family Report of Dr F of 5 September 2022, and I now have tendered before me a report of Ms E dated 26 June 2023[1] who has taken the initial step and it does not go any further, of attempting to provide some family therapy to these parties. As I have already said and I will say in these reasons, I am not overly optimistic as to whether that will take place or its success if it does, given certain factors in relation to the father.
[1] Exhibit A1.
By reason of the children’s living arrangements, the sporadic relationship between the children and the father and his apparent unwillingness to accept the responsibilities of parenthood, it is quite clear that these children’s sense of support and dependency rests with their mother, hence the relationship between children and mother is very much a meaningful one.
The same cannot be said of the relationship of the children with the father, and it is most heart wrenching to read where this eight year-old girl is desirous of a relationship with Dad but he is not accommodating of that. What that does to a child emotionally and psychologically is probably speculation, but I can heavily speculate as to what impact that will have on this girl as she goes through her childhood and her adolescence into her adulthood.
This is a matter in which family violence is prevalent. The mother asserts and it is now unchallenged that the father has been a perpetrator of family violence. That is not unusual in these matters, and it is a sad indictment on perhaps society in the 21st century that this continues to happen despite what we read in the papers, despite what politicians say and promise, it happens. But what is different about this case is the impact of family violence on X in particular and young Y who is just three years of age, and again we can only speculate but it has certainly manifested in the eight year old child.
The children are eight and three. They are most likely not of an age where they are able to properly and maturely rationalise their own views and preferences, except to say that X is desirous of a relationship with both of her parents.
I have already referred to the nature of the relationship of the children with their parents. Quite clearly, their sense of dependency and support rests with their mother and little of that is forthcoming from their father.
The mother’s capacity to parent these children is admirable. It is unchallenged by reason of the father not presenting himself at this Court, and the Family Report corroborates the capacity of the mother as an excellent parent and these children are very lucky to have one good parent.
The capacity of the father remains seriously impeached. As I said, he does not stand up to the plate. He does not accept the responsibilities and he does not acknowledge the family violence of which he is alleged to be a perpetrator.
The mother to her credit, in the circumstances that I have just read into these reasons shows in my view an unusually high degree of objectivity, despite the circumstances in which she has travelled through this relationship and will confront her now, she leaves open the channels of communication and the possibility of a relationship for the children with their father.
The onus now sits fairly and squarely on this man. If he wants a relationship with his children then the door is open, or at least ajar. He has to satisfy his children’s mother that his children will be happy and safe in his care if that is to occur, and frankly he has got some work to do before that happens.
In all of the circumstances, the orders sought by the mother are in my view, very much in the best interests of these two young children.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 3 July 2023
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