Stavrou & Stavrou

Case [2021] FedCFamC1F 164

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1

Stavrou & Stavrou [2021] FedCFamC1F 164

File number(s): PAC 3161 of 2019
Judgment of: HANNAM J
Date of judgment: 29 October 2021
Catchwords: FAMILY LAW – CHILDREN – Interim parenting – Review of a Senior Registrar’s decision – Where the father seeks orders that the parents hold equal shared parental responsibility for the children and that his interim time with the children increase given their ages and developmental stage – Where the mother opposes the father’s application and seeks orders confirming the current parenting arrangement providing the father defined time with the children during the weekend and one week day – Where the ICL supports orders for an increase in the father’s interim time but proposes a different time regime to the father – Where at the hearing the parties agreed that the most salient risk factor to the children is their exposure to parental conflict particularly in the context of changeover events – Where the mother otherwise alleges that the children are at risk of harm in the father’s care on a number of bases but only pursued some at interim hearing – Where the father alleges that the mother has little capacity to support the children’s relationship with him – Where Court is satisfied that changeover orders made at the interim hearing mitigate risks relating to parental conflict – Where the Court is of the view that the current parenting arrangement fosters a meaningful relationship between the children and the father such that there is no need to increase children’s time with their father to promote an “optimal relationship” – Orders made confirming current parenting arrangement relating to children’s time with father as sought by the mother.
Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 14.07

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAC

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

George & George [2013] FamCAFC 182

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Mazorski & Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92

SS & AH [2010] FamCAFC 13

Division: Division 1 First Instance
Number of paragraphs: 158
Date of hearing: 14 September 2021
Place: Sydney
Counsel for the Applicant: Mr Samson SC
Counsel for the Respondent: Ms Gillies SC
Solicitor for the Applicant: Watts McCray Pty Ltd
Solicitor for the Respondent: Williamson & Learmonth Solicitors
Solicitor for the Independent Children’s Lawyer Ms Dodson

ORDERS

PAC 3161 of 2019
BETWEEN:

MS STAVROU

Applicant
AND:

MR STAVROU

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

29 OCTOBER 2021

ORDERS

THE COURT ORDERS THAT:

1.Orders 1, 3, 4 and 5 of the interim orders made by Senior Registrar Tran on 2 July 2021 are discharged.

2.The father’s Amended Case Application filed 22 April 2021 seeking that the parties equally share responsibility for the children and that the children’s time with him…

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AGLC
Stavrou & Stavrou [2021] FedCFamC1F 164
Case
[2021] FedCFamC1F 164
Decision Date

CaseChat Overview and Summary

In the matter of Stavrou & Stavrou, the Federal Circuit Court was tasked with determining the appropriate interim parenting arrangements for the two children of the parties. The father sought an increase in his time with the children and equal shared parental responsibility, while the mother opposed these requests and sought to maintain the existing arrangement. The Independent Children's Lawyer supported an increase in the father's time but proposed a different schedule. At the hearing, the parties acknowledged that the primary risk to the children was exposure to parental conflict, particularly during changeovers. The mother also alleged that the children were at risk of harm in the father's care, though she only pursued some of these allegations at the interim hearing. The father, on the other hand, claimed that the mother had little capacity to support the children's relationship with him. The court was satisfied that the changeover orders made at the interim hearing adequately mitigated the risks related to parental conflict. The court found that the current parenting arrangement fostered a meaningful relationship between the children and the father, thus there was no need to increase the children's time with their father to promote an "optimal relationship."

The legal issues the court had to decide involved whether the father's or the Independent Children's Lawyer's proposals were appropriate, or whether the parenting arrangement prior to the making of the orders on 2 July 2021 should continue. The court considered the best interests of the children as the paramount consideration, as outlined in Section 60CA of the Family Law Act 1975 (Cth). The court also considered the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The court was not satisfied that the children's time with the father should increase as proposed by the father and the Independent Children's Lawyer, having regard to the children's best interests.

The court concluded that it was proper to make interim orders as sought by the mother, confirming the father's time under the parenting arrangement prior to the July 2021 orders. The court found that these orders were in the children's best interests, taking into account the relevant objects and principles in the Family Law Act and the best interests considerations set out in Section 60CC. The court dismissed the father's application for equal shared parental responsibility and an increase in his time with the children. The court made orders confirming the existing parenting arrangement relating to the children's time with their father, as sought by the mother. The orders also noted that the changeover arrangements made on 14 September 2021, and other restraints on the mother's subsequent partner and each parent consented to by the parties on 2 July 2021, would remain in place.

Orders

Orders of the court

PAC 3161 of 2019

BETWEEN:

MS STAVROU

Applicant

AND:

MR STAVROU

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

29 OCTOBER 2021

ORDERS

THE COURT ORDERS THAT:

1. Orders 1, 3, 4 and 5 of the interim orders made by Senior Registrar Tran on 2 July 2021 are discharged.

2. The father’s Amended Case Application filed 22 April 2021 seeking that the parties equally share responsibility for the children and that the children’s time with him increase is dismissed.

PENDING FURTHER ORDER:

3. The children are to spend time with the father as follows:

(a) In relation to the child X born … 2013:-

(i) From after school each Wednesday to 6.30 pm.

(ii) From 9.00 am Saturday to 5.00 pm Sunday each alternate weekend.

(iii) From 9.00 am to 5.00 pm each Thursday during school holiday periods.

(iv) From 3.00 pm Christmas Day to 12.00 noon Boxing day.

(b) In relation to the child Y born … 2018:-

(i) From after preschool at 2.00 pm to 6.30 pm each Wednesday, this order to be suspended during school holidays.

(ii) From 9.00 am to 5.00 pm each alternate Saturday and then 9.00 am to 5.00 pm on the Sunday of the same weekend.

(iii) From 9.00 am to 5.00 pm each Thursday during school holidays.

(iv) From 3.00 pm to 8.00 pm Christmas Day.

(c) Such other times as may be agreed between the parties.

THE COURT NOTES THAT:

A. Orders made on 14 September 2021 relating to changeover arrangements remain in place.

B. Restraints relating to each parent and the mother’s former partner Mr Q made with the parties consent on 2 July 2021 remain in place.

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

The remaining question for me to determine is whether the proposals of the father or the ICL are proper, or whether the parenting arrangement prior to the making of the orders on 2 July 2021 should continue having regard to the best interests of the children being the paramount consideration. BACKGROUND The parties who are both in their 30’s formed a relationship and then began living together in 2011 or 2012. They married in 2013. The mother contends that from an early stage in their relationship the father engaged in conduct towards her that falls within the definition of family violence. The father denies that he behaved in such a manner and this is a significant issue in dispute between the parties to which I will return. In the course of their relationship the parties had two children, a daughter who was born in 2013 and is now aged seven (“the daughter”) and a son who was born in 2018 and is now aged three (“the son”). The mother claims that when the relationship was intact the father frequently smacked the daughter in an attempt to discipline her. It is the mother’s case that she and the father separated on 11 November 2018 after an occasion when the father smacked this child then aged five and that following an argument between the parents about this matter, he also assaulted her. Although the father denies physically abusing both the daughter and the mother on this occasion, there is no dispute between the parties that on the following day, 12 November 2018, the mother reported the incident to police and a provisional Apprehended Domestic Violence Order (“ADVO”) was made against the father for her protection. As a result of the incident on 11 November 2018 the father was also charged with assaulting the mother. After the ADVO was served on the father I understand that he was required under its terms to leave the former family home. After leaving, the father moved next door to the home of the paternal grandmother, in which other members of the extended paternal family also live. After the parties separated, they initially reached agreement about parenting arrangements whereby the children who were then aged five and eight months respectively remained living with the mother and spent time with the father during the day each Sunday. Initially the son spent less time with the father than the daughter, but by April 2019 the parties had agreed for both children to spend the same amount of time with the father. A few months later, the parties subsequently agreed that the daughter, who was by this stage almost six, would spend increasing time with the father including overnight each fortnight. Additional time for the children with their father on a weekday afternoon was also introduced. In March 2019 both the criminal charge against the father and the application for a final ADVO were dismissed. These parenting proceedings were commenced in the Federal Circuit Court in July 2019 and the father deposes that around that time the mother formed a relationship with a new partner (“the mother’s subsequent partner”). The mother deposes that this relationship began in September or October 2019.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view, it is not appropriate to apply the presumption at this interim stage where there are untested allegations relating to family violence. It is also not appropriate to apply the presumption having regard to the conflict-laden relationship between the parents. In these circumstances, it would not be appropriate to make any order for equal shared parental responsibility. Accordingly, at law, the parents will each continue to hold parental responsibility for the children.CONCLUSION Having regard to each of the best interests considerations and other matters referred to under the additional considerations, I consider it proper to make interim orders as sought by the mother confirming the father’s time under the parenting arrangement prior to the July 2021 orders. I am of the view that those orders are in the children’s best interests. For the foregoing reasons, I make the orders set out at the forefront of these Reasons, noting that the orders relating to changeover made on 14 September 2021, and other restraints on the mother’s subsequent partner and each parent consented to by the parties on 2 July 2021, remain in place.

Ratio Decidendi

Legal Principle Established

Although for the reasons given, there is no other likely risk to the children other than parental conflict which I consider appropriately addressed at this stage, I am not satisfied that the children’s time with the father should increase as proposed by the father and the ICL having regard to the children’s best interests for the following reasons.BEST INTEREST CONSIDERATIONS In applying the law to the facts, the Court must uphold the relevant Objects and Principles in the part of the Act dealing with parenting. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. The best interests of the child are determined as a result of consideration of the matters set out in s 60CC. The primary considerations, which are contained in s 60CC(2), are:(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. Although the meaning of "meaningful relationship" is not defined in the Act, it has been interpreted as meaning a relationship which is "important" or "significant".[1] [1] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26]. Both the father and the ICL’s proposal would see the children’s time with the father increase although at different rates. Both proposals have the same effective endpoint in relation to the time the children will spend with the father. Both the father and the ICL submit that there is no evidence of alleged shortcomings in the father’s capacity to meet the children’s needs such that the orders they propose are not in the children’s best interests. They each contend that an arrangement increasing the father’s time is in the children’s best interests having particular regard to the children’s ages and developmental stage, and argue that the “very narrow and defined time” the children currently spend with their father precludes him from being engaged in an ordinary routine of care for each child and limits the son in particular from enjoying a meaningful relationship with the father. In seeking that the current parenting arrangement be confirmed, the mother must be taken to accept that the children receive a benefit from having a meaningful relationship with their father. As noted earlier, although the mother contends that there are a number of risks posed by the father, she does not seek that his time with the children be reduced. There is nothing to suggest that the children are deprived of a meaningful relationship with their father under the current parenting arrangement. This arrangement has effectively been in place since September 2019 with slight adjustments made in July 2020. Under that arrangement, the children have ample opportunity to be involved in the parental household and under these orders their relationships with their non-primary carer is preserved. While this arrangement may not foster optimal relationships between the children and the father, the legislation does not aspire to this but rather aspires to promote meaningful relationships.[2][2] Per Kay J in Godfrey & Sanders [2007] FamCA 102 at [36].