Samaras & Samaras
[2021] FedCFamC2F 263
•7 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Samaras & Samaras [2021] FedCFamC2F 263
File number: MLC 11508 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 7 October 2021 Catchwords: FAMILY LAW – interim parenting orders – quality of supervisor’s observations – allegations of family violence – no unacceptable risk – nature of relationship between father and child. Legislation: Family Law Act 1975 (Cth). Cases cited: Samaras & Samaras [2021] FCCA 782 Division: Division 2 Family Law Number of paragraphs: 28 Date of hearing: 7 October 2021 Place: Melbourne Solicitor for the Applicant: Oxford Partners Lawyers Counsel for the Respondent: Ms V Theoharopoulou Solicitor for the Respondent: MNG Lawyers Pty Ltd Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 11508 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SAMARAS
Applicant
AND: MS SAMARAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS THAT:
1.That paragraphs 2 and 3 of the Orders of the 11 March 2021 be discharged.
2.The child X born in 2012 spend time with the Father as follows:
(i)Weekly time - in a two week cycle as follows:
(a)In week 1 - Every alternate weekend from the conclusion of school or 3.30pm on Friday until the commencement of school or 9.00 am Monday and in the event Monday is a public holiday then 9.00am Tuesday commencing 8 October 2021 and every alternate week thereafter;
(b)In week 2 - Every alternate Wednesday from the conclusion of school or 3.30pm on Wednesday until the commencement of school or 9.00am Friday commencing 13 October 2021 and every alternate week thereafter;
(c)As otherwise agreed between the parties.
(ii)School term holidays:
(a)For half the school holidays by agreement and in default of agreement as follows:
i.the first half in odd numbered years from the conclusion of last day of school term until the following Saturday at 10am and with the Mother in the second half of the school holidays; and
ii.the second half in even numbered years from the second Saturday of the school holidays at 10am until the last Sunday of the school holidays at 4pm and with the Mother from the conclusion of last day of school term until the following Saturday at 10am ;
(b)As otherwise agreed between the parties.
(iii)Long summer holidays:
(a)In 2021 (for half the long term summer holidays to be taken on a week about basis (7 consecutive nights) with the Father in the first week and each alternate week thereafter and with the Mother the second week and each alternate week thereafter, and such time shall take place from the conclusion of school on the last day of term and 7 consecutive nights thereafter concluding at 4pm.;
(b)In 2022 and onwards - for half the school holidays by agreement between the parties and in default of agreement the first half in odd numbered years and second half in even numbered years;
(c)As otherwise agreed between the parties.
3.That the Father's time outlined in Order 2(i)(a) and 2(i)(b) hereof, shall be suspended during Term and Long summer holidays and recommence in the same cycle had his time not been interrupted.
4.During school term the child communicates with the Father by FaceTime every Tuesday at 5.00pm and as otherwise agreed between the parties.
5.During the School Term holidays and the Long summer school holidays the child communicates by FaceTime with the parent he is not with every Wednesday at 5.00pm.
6.When the child is communicating by FaceTime with the Father, the Mother is to ensure that the child is provided privacy.
7.When the child is spending time with one parent the other parent is not to call the child unless it is an emergency or in accordance with Court Orders or by agreement in writing between the parties.
8.The Mother is to change the Father's identification details on the child's iPad from a telephone number to 'Dad'.
9.The parties' lawyers/Counsel retained for Final Hearing confer and settle a trial plan detailing how the Final Hearing will be contained to the estimated 3 days and attach that plan, whether agreed or not, to each parties' outline of case.
THE COURT ORDERS BY CONSENT THAT:
10.When the child is with one parent and if he wishes to communicate with the other parent, then the parent the child is with will facilitate this call.
AND THE COURT NOTES THAT:
A.The child's time with the Father is no longer conditional to having a third party being in substantial attendance.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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.
C.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.
D.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.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym Samaras & Samaras has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
This matter comes before me for an interim defended hearing in the circumstances where I previously dealt with the matter on 11 March 2021. These reasons need to be read in conjunction with the reasons given on 11 March 2021 when I first dealt with the matter Samaras & Samaras [2021] FCCA 782.
I will repeat the significant paragraphs from Mr G's report, who saw the family in February and released his report on or about 3 June 2021, only a week or so before the matter returned before me:
[28]X presented as a friendly boy, who separated easily from his mother and settled quickly into the interview. He however was quite difficult to focus, was distracted and inattentive, struggled with receptive and expressive language, and needed a more structured and directed interview style. He described his parents in very concrete terms, predominately on the basis of things that they could provide to him, telling me that his parents separated because police thought that he and his mother were going to be in big danger. X told me that having separate parents was hard, that he only had a mother and not a father, that it was difficult for him to not have two parents and that he missed his father.
[29]X has accepted the narrative that his father was a danger, and that consequently, the only contact they could have was by FaceTime during which they played on the PlayStation. He explained that he would likely see his father when he is older, that his father was trying to be good, but even now, the police record the telephone conversations in order to see if he is being bad. It was not possible to elaborate from X what he meant by this. Notwithstanding the concerns, X's memories of family life were positive. He told me that it used to be nice to have his father living with him, that he was surprised that his parents separated, that he had thought the family was happy and that he loved his father. Despite this relocation, when asked to describe his father, he told me that his father lies, that his father constantly tries to control his mother, and that his father was mean. X was not really able to elaborate on what he meant by this description, but in response to my attempts to encourage him to elaborate he told me that once his father pulled him by the T-shirt, that he called to his mother, but his father then denied having done so. He went on to explain that his father also tries to tell his mother what to do, that there was nothing good about his father, but that he was nonetheless excited to see him.
[30]In contrast, X described his mother as kind, friendly, that she takes care of him, does nice things for him, but that she does not like his father and told me that police said that if his father turns good that they could get back together. X sees himself as very much connected to and reliant upon his mother, he trusts her and readily defers to her. His presentation however was difficult; he was very restless, his narrative was often confused, he found it difficult to stay on topic, and at times he was difficult to comprehend. The theme that emerged however was that he missed his father and was hoping that his father would change, that is, be nice, so that he could return to the home. He understands the conflict between his parents and the tensions that surround him, and in his own words he told me “.... my mum does not want me to get too much on dad's side and not tell him too much to dad because she thinks I will be on his side and I will fight mum and only have dad .... Mum thinks I should keep him away, she thinks that I want dad home and he will kill my mum and then I will not have a mum or dad.” He went on to elaborate that he thought that if his father got too bad that his father might kill his mother, explaining that his father used to lie, and “.... that means that he is going to try and kill mum, possibly with a gun or knife .... mum thinks dad is going to be very mad". When asked what he thought his mother believed would be the best course of action, he told me that “..... my mum thinks we should keep them away from us maybe because he is really mad.”
…
[32]X seemed to struggle to know how to describe his father. He is highly ambivalent but also confused, unsure as to whether to trust or not trust his father, whether to see him or not to see him, and about where he fits in the family. X drew for me a drawing of a devil who used to be an angel but then did bad things and went to hell; this is the biblical story of Lucifer. When asked if he knew anyone who was like the devil, he told me “.... my dad is like the devil, he is bad”. I draw attention to the confusing nature of the narrative, that his father was good and then turned bad, that leaves X uncertain, but also embroiled. When asked to elaborate he told me that his father was bad because he lied, tried to control his mother, that his father lied about all the stuff he pretended to do, but acknowledged that this was difficult to explain.
…
[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.
…
[39]Ms Samaras however maintains that this level of conflict and the emotional abuse she claims to have endured, was characteristic of the relationship all the way through and not just a function of the latter stages of the relationship. She has sought psychological assistance for herself and has come to understand that the maltreatment she endured was reflective of a cycle of violence, that Mr Samaras' behaviour was manipulative, undermining, and subtly coercive and controlling. She used terms such as gas lighting to describe how she felt that he constantly undermined her, questioned her view of reality, caused her to question and doubt her own competence and ability, distort her thoughts and beliefs, undermine her self-confidence and manipulate her. She gave to me numerous examples of how this behaviour by Mr Samaras was enacted over the course of the relationship, and the enormity of the psychological impact upon her that only changed when she sought psychological assistance and was invited to view his maltreatment as family violence.
…
[43]The narrative from Mr and Ms Samaras is equally compelling. I was left in no doubt that Ms Samaras felt emotionally besieged, attacked, undermined, criticised and that the impact on her of her relationship with Mr Samaras was significant and enduring. To what extent this is a function of the actions of Mr Samaras specifically, compared to their interpersonal style, their role definitions, their respective expectations, their communication style and indeed, the level of control imposed by Mr Samaras, may become apparent through a testing of the evidence…
At that time, I was concerned to ensure that the child's safety was prioritised as he was reintroduced to his Father. That was not on the basis of accepting the allegations against him, nor was it on the basis of accepting his denials. At that time the most significant evidence that I had was the observations of the independent child expert and psychologist.
I have this day inquired of the Mother's counsel as to what observations or matters she would like to submit to me about those observations. That was in the context of some very detailed and powerful submissions from her counsel, Ms Theoharopoulou, in regard to concentrating on the degree of risk consequent upon the Mother's allegations of family violence; however, it was significant that the Mother, in her affidavit filed on 29 September 2021, did not at all address those observations, and, indeed, it was necessary for Ms Theoharopoulou to stand the matter down to obtain instructions in regard to those very significant observations.
This day, upon my pressing, the Mother's position was that she cannot speak against or contradict the observations of Mr G, but asked that I look at it through the lens of and in the context of the family violence that she alleges. I also, following some detailed and powerful submissions by the Mother's counsel, pressed as to whether the observations of the supervisor reported in Ms B's report were contested. After the matter was stood down, Ms Theoharopoulou was able to tell me that the Mother does not speak against or contradict the observations of the supervision service but, again, asked that I look through the lens of family violence and the trauma that may have been suffered by the child and the Mother and the learnings and theories about cycle of violence.
What is significant for my decision this day is that pursuant to the orders that I made on 11 March 2021, there was supervised time, and the supervised time occurred on 20 March 2021, 27 March 2021, 3 April 2021 and 10 April 2021. The settled reasons will set out and quote directly from those observations on each of those occasions.
…
20th March 2021 Intake Session & 1st Period of Supervised Time M Park, Suburb N.
…
Time with Father
14:29 Mr Samaras arrived. X smiled as he saw Mr Samaras approaching and excitedly yelled out, “Dad!” and ran to him. X happily jumped up to hug Mr Samaras. Mr Samaras affectionately wrapped his arms around X, and kissed him on the head and lifted X into his arms. Mr Samaras told X he loved him very much.
…
15:40 Mr Samaras suggested they stop to rest and drink some water. X nodded his head in agreement. They sat on the bench and drank some water. X asked if they could watch an episode on YouTube of the ‘O Characters.’ Mr Samaras replied, “Yeah…okay.” X happily sat on Mr Samaras’ lap as they watched a video on Mr Samaras’ mobile phone.
15:55 For the last 30 minutes today Mr Samaras and X played again on the various play equipment. Once again, they played and engaged well, and Mr Samaras had lots encouragement and praises for X.
…
27th March 2021 2nd Period of Supervised Time M Park, Suburb N.
Time with Father
…
X smiled as he saw Mr Samaras approaching and enthusiastically yelled out,“Dad.” X then ran to greet Mr Samaras. Mr Samaras affectionately wrapped his arms around X, and kissed him on the head. He lifted X up into his arms.
Mr Samaras excitedly told X he had made a calendar for him. The calendar had all the times and dates, that he would be in contact with him. X smiled and appeared happy about that.
…
Goodbye Time & Handover
10:58 Mr Samaras told X it was time for him to leave, and mummy would be here soon.
Mr Samaras hugged and kissed X goodbye. X hugged and kissed Mr Samaras back. Mr Samaras told X that he loved him as he held him in his arms, and he would speak with him tomorrow. X smiled and nodded his head.
…
3rd April 2021 3rd Period of Supervised Time
…
Time with Father
09:10 X and I were at the monkey bars waiting for Mr Samaras to arrive.
X yelled out “Dad!” as he saw Mr Samaras approaching. X excitedly ran to greet him, when he slipped on the wet grass and fell on his bottom. X picked himself up and jumped into Mr Samaras’ open arms. They embraced and kissed each other. Mr Samaras asked X if he was ‘Ok’. X smiled and replied, “Oh...yeah.”
Mr Samaras enthusiastically said to X, “Hey…look what I got you for Easter…it’s a O character. X said he did not have this one, but now had the whole collection of characters. X jumped up and down and was thrilled about that. Mr Samaras also gave X some chocolates.
Mr Samaras told X that he had missed him all week. They hugged and kissed one another again.
…
Goodbye Time & Handover
11:00 Mr Samaras smiled and told X he would call/speak to him tomorrow. X smiled and said, “Yeah…Ok.” X then said to Mr Samaras, “Don’t cry this time…” Mr Samaras replied, “No I won’t, I cry because I miss you.” X smiled at Mr Samaras.
Mr Samaras hugged and kissed X and told him he loved him. X hugged and kissed Mr Samaras back, as they said goodbye to each other.
…
10th April 2021 4th Period of Supervised Time
…
Time with Father
15:03 X and I went to the monkey bars and waited for Mr Samaras to arrive.
X yelled out “Dad!” as he saw Mr Samaras approaching. X excitedly ran to greet him. Mr Samaras dropped his bag and ran to greet X. X jumped into Mr Samaras’ open arms and they embraced and kissed each other. “I missed you,” said Mr Samaras to X.
…
Goodbye Time & Handover
16:55 Mr Samaras told X it was time for him to leave. Mr Samaras told X he loved very much and that he could play at daddy’s place next week. X smiled and replied, “Yeah…ok dad.” Mr Samaras told X they would talk tomorrow morning when he called him.
Mr Samaras thanked me for my services. I wished him well.
Mr Samaras said to X, “Love you X.” X replied, “Love you dad,” as they hugged and kissed each other goodbye. As Mr Samaras walked to his car Mr Samaras and X continued to yell out “Love you” to each other.
…
Final Summary
Time Spent between the father Mr Samaras and child X has progressed positively. All interaction has been caring, playful, and appropriate.
X always appears very excited when his father first arrives. They greet each other affectionately, and both appear relaxed and comfortable throughout their time together.
Mr Samaras has been totally focused on X during their time together. He will let X lead the play. He has willingly engaged actively in play with X. Mr Samaras encourages and praises X, and makes sure he is safe on and around the equipment.
The child's enthusiasm to spend time with his Father is plain, clear and significant.
In terms of chronology of events, following that supervised time, there was then time, daytime only, starting the following weekend over 17 April 2021, 24 April 2021, 1 May 2021 and 8 May 2021. That time was not supervised by an independent supervisor but in the company of the Father's parents or his sister.
The Father deposes to that time and the next regime going splendidly. It is significant that there were three sessions of that time before, on 3 May 2021, that is, the Monday following the third Saturday session of 10:00am to 6:00pm when the child spoke to the school principal and had previously spoken to the teacher. I have tendered the document from the subpoenaed documents, the record of that is as follows:
Wellbeing 11/05/2021–9:43am
03/05/2021–9:30am
…
Overview: X disclosed to Mr L that he was scared that his father would hurt his mother.
Details:On Monday 3rd May 2021, X was reluctant to get out of his mother’s car and was in the foetal position in the back seat. Mr L tried to encourage him to come out and coerced him out by telling him there was a new student in class that he should meet and show around school.
Mr L and X played a quick game of “basketball shot” in his office and talked about his weekend. He said he had spent time with his father, and they had played games together.
When they were walking through the prep courtyard towards his classroom, X said “My dad is in trouble for violence”. Mr L replied “I know X, but you are safe here at school and also at home with mum and your dad. Are you worried about your mum?” X responded, “Yes I’m worried my dad will hurt my mummy.” Mr L reiterated that both he and his mother were safe and he could always come and speak to Mr L if he wanted to talk.
X went to class and was happy to see his classmates.
Location: Prep Courtyard.
In addition, the Mother deposes in her affidavit what the child had told the teacher of events, (and the email exchange between the Mother and the teacher corroborates those observations). It is significant and interesting that those observations come very soon after the observations of the high quality and close and appropriate relationship observed in February, by Mr G, then over two occasions in March and the further two occasions in April.
It is crystal clear that the child does not exhibit a fear of his Father. It is significant that he has told the school and, in particular, the school principal of a fear that his Father may harm his Mother. It is common ground or, at least, the Mother's case that is not disputed by the Father on this interim hearing that the events as to how the Father was removed from the matrimonial home are more or less as follows.
The Father had discussed with the Mother his intention to obtain a firearms licence and that this was for the purpose of taking possessions of some firearms of his father or grandfather that had been in the family for some time. The Mother further opposed his getting such a licence, she said, and found a copy of the application for such a licence. Her therapist, who she was seeing at that time, advised her to report this to the police and press that they put a hold on him obtaining the licence. The Mother determined that she would follow that advice. She attended the police station, and it is significant that there are two accounts of that attendance: firstly, the Mother's account in her affidavit and then her account in the text message that is exhibit 4 to the Father's first affidavit. In the latter she demonstrated the high regard that she had for his parents and her horror or, at least, concern at the events that unfolded.
The other part of the mosaic of information in this case is that the Father had discussed with the Mother the preparation of a will. The discussion about the preparation of the will is, again, common ground. It is clear that, upon reflection, the mother has joined the discussion about a firearms licence and the discussion about the will and seen those events as an intimidatory potential threat, albeit subtle.
She attended upon the police station to request that the gun licence be put on hold. By the time she left, the police had determined that, for her safety and the child's safety, the Father needed to be removed from the home. The task of a police officer has never been more complex or more difficult. The significant and appropriate concentration on the attempt to alleviate and reduce family violence has certain consequences. No doubt acting properly and within guidelines within their day-to-day job, the relevant police officers determined there and then to remove the Father from the home.
Police officers do not get the chance for long reflection, examination of expert reports, consideration of the other side. When it comes to family violence, the Victoria Police are required to act swiftly, resolutely and in a manner that minimises the potential of family violence and the exposure of children to family violence. However, the consequence of that decision on that day was that the Father was removed from the home by the police, without notice to him, in the presence of the child. It is unsurprising that the child would have a view about that, or at least, ponder why that was so.
The Father posits that, in this case, the Mother has attempted to alienate the child from him and has involved the child in her own views or, at least, allegations about his behaviour. The Independent Children’s Lawyer (“ICL”) submits that the Mother has overshared her perception of her experiences. The child's recollection of events is as reported to Mr G at paragraphs 29 and 30 cited earlier in these reasons. What is significant is the child's recollections and feelings at that time were contrary to his other statements that the Father had lied and that his Father was in trouble with the police.
In my view, it does not necessarily follow that the only explanation as to the child's discordant statements to Mr G as compared to his actual recollections of his time in the family together can only come from his Mother and from alienation. It is not clear to me the extent to which Mr G was able to deal with and, in fact, know about the actual detail of how it occurred when the Father was removed from the home by the police in the child’s presence. That event may well explain some of the child's views. However, that does not mean that I am finding today that the Mother has not overshared her recollection of her experiences. However, I cannot find as a fact that she has. However, the issue of the police removing the Father from the child's home may well be connected to the issue of what the child has told the school and, in particular, the principal. In this case the ICL presses for an increase of the time from the current alternate weekends from after school Friday until before school Monday to add two nights and a one full day in the following week so that the Father would enjoy a weekend and three nights over the weekend and then enjoy from the Wednesday after school, Wednesday night, all day Thursday, Thursday night, and Friday morning back to school. That position is supported by the Father.
The Mother opposes that and seeks that the time remain as it is. Further, the ICL and the Father press that the requirement that I imposed on 11 March 2021 that the child's grandparents or aunty be in substantial attendance be removed and the Mother presses that it remain. The Father and the ICL pressed that the video time, in the event I extend the time as pressed by the ICL, to be of each Tuesday rather than twice a week but have the additional condition that the Mother provide privacy to the child; that is to not observe, listen to, interrupt, or speak to the child during that time. The Mother's position is that if time remains as it is, video time can continue but without that prohibition on her involvement.
It is significant that the observations of the supervisor are entirely consistent with the observations of the relationship made by Mr G. I note that the supervisors in this case are not necessarily qualified in an academic or child training sense. However, as experienced supervisors, they are in a position to frequently observe children and the practice particularly of that particular supervision service of very carefully recorded observations causes the supervisor, in my view, to concentrate even more carefully about what they are observing. In this report what the supervisor may lack in formal qualifications is made up for by the longitude or the extent of the observations. That is, over four separate occasions, two in March and two in April and over a number of hours. That is hours and hours spread out over a significant period of time. The observations are not in dispute. I place less weight on the opinion of the supervisor as to the nature of the observations.
The opinions expressed are entirely consistent with the observations. However, it is the actual observations that assist me the most in this case. The observations enable me to draw my own conclusion as to the nature of the relationship. The further matter that is significant is that the ICL has, as appropriate, spoken with the now eight and a half year old child. The ICL tells me that as at September when she spoke to the child, the child wished to spend more time with his Father. I only place a very modest amount of weight of the wishes of an eight year old caught between parents in high conflict. Previously, in a letter the Mother had expressed the view, I think to the Father's lawyer, that she was very much guided by the child's view of what should occur in regard to video link time. I do place some weight on the child's wishes but what is very significant about the child's wishes as expressed is the information that provides me about the nature of the relationship with his Father.
The ICL presses that more time is needed and in the absence of the requirement that other people be in substantial attendance so that the child's relationship with his Father can be normalised. The ICL raises with me the significant interruption of that relationship over a period of some eight months.
The Mother's case which was put to me in powerful terms by Ms Theoharopoulou is entirely consistent with the affidavit material. Essentially, from paragraph 11 through to 16 the Mother paints a picture of her experience which is that when the child was not seeing the Father, in her view, the child was less anxious. Following the reintroduction of time his behaviour has deteriorated and she asserts deteriorated at school and at home and she points to disturbing behaviours of the angry dancing, his aggression to his Mother, his aggression to the pet cat, and the calling of names.
The Mother points to the Father buying toys for the child in his home as the same manipulation as she experienced in her relationship. It is not clear to me the extent to which the Mother's therapy has assisted her explore an alternative reality as to her experience during the relationship. In this case, the Father not only denies the aggressive behaviour but alleges that, in fact, it was the Mother who would abuse him in foul language and aggressive terms and then put that behaviour at his doorstep. The parties now know from reading my first decision that on an interim decision I cannot make determinations in regard to disputed facts, save in the rarest of circumstances. In this case, a testing of the evidence has not occurred. If it is necessary to test that evidence to determine the best wishes or the best interest of X I will do so at the final hearing.
The matter is booked in for three days and I am concerned at it being contained. The thought has crossed my mind that it should be transferred to Division 1 of the Federal Circuit and Family Court of Australia where time constraints are not as rigorous as what must be applied in my Court. I will ask the parties' lawyers to turn their mind as this case gets closer to trial to whether, in reality, it can be contained to three days. What happens when cases booked in for three days are not contained to within the time that they are expected is that they get adjourned part heard. Usually for a month or two, or three, or four down the track to try and accommodate the same counsel and lawyers appearing, when the Judge has time available and, of course, there is resultant unnecessary expense to the parties as their lawyers refresh their memories and so on. At the moment I will leave it listed for three days but add to these orders a direction that the parties confer and prepare a trial plan. It appears to me it will be a forensic challenge to contain this matter within three days. I do have experienced lawyers and experienced trial lawyers who are familiar with such an exercise.
The long and the short of it is, I am persuaded, in part for the reasons advanced by the ICL and the Father, but most significantly by the not contested observations of Mr G and of the supervisor over many hours. Those observations tell me that X not only wishes to spend more time with his Father but needs to spend more time with his Father.
These reasons could be longer but it is already 4.30pm in a matter that was meant to be contained within two hours. I can indicate to the parties I have taken into account all of the material on which they relied, including, Ms P’s report and the controversy about what that adds. In fact, whilst Ms P’s report is interesting, it does not assist me determine this dispute. But I do take it into account.
I take into account all of Part VII of the Family Law Act 1975 (Cth). I find there is not an unacceptable risk to the welfare of X in his Father's care. There is not a need for there to be adults in substantial attendance. It should be increased to the two nights in the alternate week. However, I would want the commencement dates inserted in the ICLs minute in that date. In addition, the FaceTime should be each Tuesday. I acknowledge Ms Theoharopoulou's submission that for each Tuesday time this will interfere in the Mother's time. Essentially, the Mother will have her time without interference from the Father from Wednesday morning, the following Thursday, Friday, Saturday, Sunday, Monday, and Tuesday until the FaceTime call of a Tuesday evening. The FaceTime each Tuesday evening means that the time will be shortly after the child has spent time with the Father which will enable them to recap the events of that time and then will be shortly before the new additional week time Wednesdays, Thursdays, which will enable them to prepare for that time. The child and his Father, and in particular the child, are entitled to some privacy in that communication.
It was submitted to me by the Mother that I should, if I am going to increase time, gradually increase it. Whereas the ICL urged me to move to the increase in time immediately, primarily because of the strength of the relationship between the child and the Father and the benefit to the child of maintaining a significant relationship with his Father. I propose to make those orders as the ICL seeks.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 27 October 2021
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