Samaras & Samaras

[2021] FCCA 782

FEDERAL CIRCUIT COURT OF AUSTRALIA

Samaras & Samaras [2021] FCCA 782

File number:

MLC 11508 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

11 March 2021

Catchwords:

FAMILY LAW – interim parenting order – allegations of family violence – father’s spend time arrangements – supervised time.

Legislation:

Family Law Act 1975 (Cth) s 60CC(3).

Cases cited:

Goode & Goode [2006] FamCA 1346

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & AAM17 [2021] HCA 6.

Number of paragraphs:

16

Date of hearing:

11 March 2021

Place:

Melbourne

Counsel for the Applicant:

Mr P O’Connell

Solicitor for the Applicant:

Oxford Partners Lawyers

Counsel for the Respondent:

Ms V Theoharopoulou

Solicitor for the Respondent:

MNG Lawyers

ORDERS

MLC 11508 of 2020

BETWEEN:

MR SAMARAS

Applicant

AND:

MRS SAMARAS

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	11 MARCH 2021

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

Children's Orders

1.The child X born in 2012 ("the child) live with the Mother.

2.The child spend time and communicate with the Father as follows:

(a)initially, for four weeks supervised by B Family Services or C Supervision Services for at least two hours per week with the times, dates and places to be as directed by the supervision service AND such supervision service shall forthwith be nominated by the Father in writing.

(b)thereafter and subject to paragraph 6 and 9 hereof, in the substantial presence of either X, Mr E Samaras or Ms F and conditional upon such substantial presence as follows :

(i)each Saturday from 10:00am to 6pm for four Saturdays;

(ii)then each weekend from 10am Saturday to 10am Sunday for four weekends;

(iii)then each alternate weekend from 10 am Saturday to 6pm Sunday for two weekends;

(iv)then each alternate weekend from the conclusion of school or 3.30pm Friday until 6pm Sunday for two weekends; and

(v)thereafter, each alternate weekend from the conclusion of school or 3.30pm Friday until the commencement of school or 9am Monday.

(c)By FaceTime each Sunday at 9:00am and each Wednesday at 5:00pm and for no more than 30 minute catch up call

3.The changeover for the purposes of paragraph 2(a) shall be as directed by the relevant supervision service.

4.The changeover for the purposes of paragraphs 2(b) that does not occur at school, shall otherwise occur at McDonalds at the corner of C and D Road.

5.The Father and the Mother shall forthwith do all things and sign all documents necessary to give effect to the supervision requirement in paragraph 2(a), including completing and signing all documents necessary and attending any intake and other interviews as directed by the relevant supervision service and the costs of this supervision shall initially be borne by the Father with the Mother's contribution to such costs being determined at the Final Hearing.

6.Any person in whose substantial presence the time stipulated in paragraph 2(b) hereof shall occur, shall prior to any time in his or her substantial presence occurring file an Affidavit swearing that he or she has read the Family Report herein and also these Orders and will ensure the compliance by the Father of Order 2(b) and will cease the Father's time with the child and immediately contact the Mother to arrange collection of the child if they observe any behaviour by the Father that puts the child's welfare at risk and or they witness the child's welfare being placed at risk in the care of the Father.

7.There shall be liberty to apply to vary these Order in the event that any supervision service nominated by the Father pursuant to paragraph 2(a) advises either parent or both as to any substantial reason that in the opinion of such supervisor indicates the child's welfare is at risk.

8.The Father shall provide any supervision service nominated pursuant to paragraph 2(a) with a copy of the Family Report filed herein prior to any time commencing.

9.That the family members referred to in Order 2(b) hereof shall provide to the Court a written Undertaking that they shall not publish and or disseminate by any means or otherwise distribute electronic copies of the Family Report and that upon completion of the Final Hearing, they shall ensure that they destroy and permanently delete from any storage or retrieval system (whether held by email, cloud storage or otherwise) the Family Report within 28 days of final orders, or in the event of an appeal, the finalisation of the appeal.

10.Pursuant to section 68L(2) of the Family Law Act 1975 the child X born in 2012 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

11.Pursuant to s.65DA(2) and s.62B, 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 the 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.

ORDERS BY CONSENT:

12.That the Father attend counselling with a professional appointed in consultation (if possible) with Mr G, to address the issues raised in paragraph 50 of the Family Report, and that such professional be provided with the Family Report and all relevant documents filed in this proceeding.

13.Each party, their servants and/or agents, be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any other member of the party's family or household in the presence or hearing of the child, or permit any other person to do so.

14.Neither parent shall discuss these proceedings nor issues in the proceedings in the presence of hearing of the child, or permit any other person to do so.

15.That within 7 days of these Orders, the Mother take the child to his regular general practitioner and obtain a referral for a cognitive assessment as recommended by Mr G, and that the general practitioner and the cognitive assessor be provided with a copy of the Family Report.

Property Orders

16.That within 30 days of these Orders, the Applicant make file and serve response to the Respondent's Wife's Property Application including an Amended Application, a Financial Statement and any relevant Affidavit in support.

17.The parties (and, if represented, their legal representatives) attend a Conciliation Conference with a Deputy Registrar of the Federal Circuit Court of Australia at the MELBOURNE Registry on 19 May 2021 at 11:00am.

18.The parties' solicitors (and if they are unrepresented, the parties themselves) send to the other, and the Registrar, at least 7 days before the Conciliation Conference, copies of:

(a)any relevant documents exchanged between the parties;

(b)any intervention or restraining orders currently in force;

(c)an outline of case document;

(d)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

(e)a copy of the actual terms of orders required to give effect to their settlement proposal; and

(f)written confirmation by each party or their solicitor that:

(i)all relevant documents have been exchanged between the parties; and

(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

19.The parties each forthwith do all things as may be necessary to obtain a joint valuation of the former matrimonial home situated at H Drive, Suburb J, Victoria. The independent valuer is to be agreed between the parties' solicitors within 35 days of the making of these Orders. In the event that the parties cannot agree on an independent valuer, one is to be appointed by the Real Estate Institute of Victoria. The cost of the valuation is to be paid jointly by the Husband and Wife.

20.The parties shall forthwith do all things as may be necessary to obtain a valuation on the vehicle 1. The independent valuer is to be agreed between the parties' solicitors within 35 days of the making of these Orders. The cost of the valuation is to be paid jointly by the Husband and Wife.

21.The parties shall forthwith make full and frank financial disclosure to each other within 30 days from the making of these Orders.

22.Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

23.The proceedings be adjourned to 26 July 2021 at 10:00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit Court of Australia at Melbourne.

24.The matter may be listed for a compliance mention by telephone approximately 2 weeks prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.

25.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

26.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 56 days prior to the Final Hearing.

27.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 42 days prior to the Final Hearing.

28.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 28 days prior to the Final Hearing.

29.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

30.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.

31.For in person final hearings, parties are directed to have multiple copies of the documents they seek to tender and have multiple copies of documents available to witnesses.

32.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to: associate.judgeo'[email protected].

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Samaras & Samaras is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of a brief ex tempore judgment and orders given on 11 March 2021 in a busy duty list.  I told the parties settled reasons would be provided and these are those settled reasons.  In my ex tempore reasons I did not set out material relied upon, applicable law, background or issues in dispute.  The parties were represented by experienced counsel and solicitors on the day who were well across all such matters.  I set out a brief summary of those matters now.

2. The Father, Mr Samaras, (‘the Father’) is aged 42 and the Mother, Ms Samaras (‘the Mother’) is aged 40.  They have one child, X, (‘the child’) aged 8.  The parties met in 2001/2, were engaged to be married in 2005/6, married in 2007 and separated in July 2020.  The Father issued proceedings in October 2020.  The parties had the common sense to stretch their resources to retain an independent expert to prepare a family report and the parties attended for interview with that expert, Mr G, on 15 February 2021 and a report dated 2 March 2021 was released to the parties soon thereafter.

3. The parties relied upon all of the material filed and the family report and I have taken that material into account and endeavoured to follow the authority of

   
   Goode & Goode

   (2006) FLC 93-286 (‘Goode & Goode’) and particularly at paragraph 82. I have taken into account the provisions of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) and in particular ss 60CA, 60CC(2)(a) & (b) and 60CC(3)(b),(d),(j) & (k).

4. The Mother’s position and allegations include the summary in the family report at [2], [5] & [10] as follows;

   [2]The Notice of Risk Filed by Mrs Samaras outlines her concerns. These include a history of alleged substance use, harsh and punitive parenting, and exposure to family violence. In her affidavit material, Mrs Samaras elaborates these concerns; apart from a history of alleged emotional and psychological abuse, denigration, manipulation and gas lighting, she also alleges that Mr Samaras has made veiled threats to kill her, specifically referring to him having sought a gun license, and inviting her to consider that they establish a Will. In relation to both these matters, even though Mr Samaras has what is, on the face of it, reasonable explanation for his actions, Mrs Samaras nonetheless feels threatened, intimidated and anxious.

   [5]Mrs Samaras stated clearly and unequivocally that the reason for these Family Law proceedings is Mr Samaras' history of family violence, culminating in his removal from the family home by Police. She described Mr Samaras has a history of abusive behaviour, poor emotional regulation, constant manipulation of her emotions, including a cycle of violence that saw him be aggressive and abusive, provide gifts and qualified apology, followed by more aggression…

   [10]…Mrs Samaras described X as highly ambivalent in relation to his father, that he tells her that he is both happy and sad that his father has gone, and that this is directly as a consequence of the behavioural problems and anger conveyed by Mr Samaras.

5. It was the Mother’s position that the assistance of the Police and her psychologist had assisted her to become aware of what she now understands was the nature of her relationship with the Father.  I am not privy to the information the Police did or didn’t have but I do not dismiss the circumstance that the Police applied for an intervention order after assessing the Mother’s safety and, although unopposed such an order was made.  On the father’s case the intervention order was entirely unnecessary and an overreaction.

6. The Father’s position and allegations include the summary in the family report at [19] as follows:

   [19]…Mr Samaras denied that there was any basis to the family violence notice, describing this as the clearest example of how Mrs Samaras confused her thoughts and beliefs with reality and then co-created that false reality with others who have accepted her account of events. In this regard, he suggested that Ms K, psychologist, had formulated a view based exclusively on what had been told to her by Mrs Samaras, and that the police too, have accepted her erroneous account of him wanting to get a firearm and a Will as reflective of her being in danger. Mr Samaras told me that he accepted the Intervention Order without admission just to be able to see X. He denied that there had ever been any physical violence in the relationship, that he was drug dependent, or that he was verbally and emotionally abusive. In this regard, Mr Samaras told me that he never used the language alleged by her and that the reality is, that it was Mrs Samaras who very often used offensive and abusive language towards him, calling him "useless and a useless f…ing c…" and then projecting that this was his behaviour.

7. The child’s relationship with his Father was observed and described at [35] thus:

   [35]When seen in the company of his father X relaxed immediately, engaged confidently and embraced his father warmly. X told his father that he missed him very, very much, to which Mr Samaras responded that he missed him too. They then shared a long lingering hug, and both very obviously enjoyed the physical embrace. X was obviously excited to see his father and was clambering for his attention, as he conveyed a pressure of speech, trying to say everything to his father all at the one time. There was an abundance of physical affection, a great deal of laughter, with X actively seeking physical contact with his father. Throughout they were cooperative, shared tasks and attention, and there was a warm serve and volley quality interaction. At the end of the interview, X excitedly gave his father another physical hug goodbye, told his father that he was looking forward to speaking to him that night, and that he enjoyed seeing him.

8. The dispute before me was whether the Father’s time with the child should be only when professionally supervised thereafter or unsupervised (and a fall-back position of in the substantial attendance of the paternal grandparents and sister) and also an issue about FaceTime communication. 

9. The following paragraphs of these reasons are as delivered ex tempore with grammatical revisions.

10. My determination is that for the first four occasions, on a weekly basis, the supervision will be by an independent service.  It will be at the Father's expense in the first instance, with the ultimate sharing of that expense, it is likely to be equal expense.  There are property proceedings on foot, but I have not examined the financial circumstances, save that the parties are privately represented by lawyers.

11. One of the issues is, not only the child’s anxiety, but his Mother's anxiety.  It appears to me that his Mother's anxiety has been contributed to by the information that she had reported to her by the police.  At the moment, I do not have any contradiction of what she says the police told her was not otherwise, and I would expect her to place weight on that.  For those reasons, I am concerned about the Mother's anxiety in promoting the Father's time with the child.  To assist that anxiety and the child's anxiety, I am going to determine that the first four occasions should be professionally supervised.  Thereafter, the regime that is set out in the minute provided.

1. There will be a transcript of the proceedings.  As to settling/revising ex tempore reasons I rely upon the High Court of Australia in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & AAM17 [2021] HCA 6 decision of 4 March 2021, stating at paragraphs 30 and 31:

   [30]Fourthly, the nature of the Federal Circuit Court’s jurisdiction also supports the giving of ex tempore reasons which are then published in written form with revisions. As Gleeson CJ, writing extra-curially, has observed:

   “There is no reason in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, they do not alter the substance.”

   [31]Fifthly, as recognised in the above passage, a judge has some ability to improve the expression of her or his judgment in published reasons, so long as she or he does not change the substance of what was said in ex tempore reasons or make other material changes. Depending upon any applicable rules of court, it may be accepted that in civil proceedings (without a jury) there is latitude for a judge to revise ex tempore reasons. That capacity may not be limited to slips, or to mistakes, or to matter of style. However, changes of substance are not permitted.

2. I have determined the matter in accordance with Goode & Goode at paragraph 82.

3. Notwithstanding that, I need to make some judgments about the weight to be given to the evidence, and I do.  I take significant comfort from the circumstance of the drug testing that the Father has subjected himself to.  I'm very concerned about the interruption between the child's relationship with his Father, given the observations made in the Family Report dated 2 March 2021 at [35], cited earlier.  I take into account all of the matters that Ms Theoharopolou, counsel for the Mother, has put to me.  I am concerned about either parent involving the child in adult matters.  At first blush, it can appear to be child focused, to be seeking the child's opinion about all matters.  However, it puts an enormous burden and responsibility on the child, when in the middle of parents who are in conflict, to make decisions like the time he will spend, either on the telephone or by video link, with a parent.

4. I take into account, in particular, the matter of promoting a significant relationship with both parents and the need to protect the child. In balancing all of the matters under section 60CC(3) of the Act it is my finding that the child will not be at an unacceptable risk of harm at the times that I have ordered, in the circumstances of following the professional supervision for four sessions and the child’s paternal grandparents and paternal aunty being in substantial attendance thereafter.

5. In terms of the appropriateness of those people to be involved in the child's life, notwithstanding how long it is that they haven't seen the child, I do take into account the nature of the Mother's very frank and genuine, even touching, communications with the paternal grandmother, in her text message of Annexure 4 of the Father’s Affidavit filed 22 October 2020, of the predicament that she found herself in.  For the purpose of that, I am accepting today, this being an interim finding, that what she says in that text message, as to the circumstances she found herself in, is reasonably accurate.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       20 April 2021