Stephanidi & Lawrence

Case [2024] FedCFamC1F 375

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Stephanidi & Lawrence [2024] FedCFamC1F 375

File number: SYC 2405 of 2023
Judgment of: SCHONELL J
Date of judgment: 31 May 2024
Catchwords: FAMILY LAW – PARENTING – Interim orders – Where each party seeks orders for the children to live with them – Children have been in the primary care of the mother for most of their lives – Consideration of risk – Mutual allegations of family violence – Father alleges the mother is a flight risk – Where the Court is satisfied the children should live with the mother with ongoing supervision by the maternal grandmother – Children to spend time with the father.  
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 69ZL, 60CA, 60CC, 60CG
Cases cited:

Adamson & Adamson [2018] FamCA 523

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Fitzwaterv Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Marvel & Marvel(No 2) (2010) 240 FLR 367; [2010] FamCAFC 101

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance
Number of paragraphs: 51
Date of hearing: 31 May 2024
Place: Sydney
Counsel for the Applicant: Ms Ingenito
Solicitor for the Applicant: Godden Lawyers
Counsel for the Respondent: Mr O’Reilly
Solicitor for the Respondent: The Norton Law Group
Solicitor for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

SYC 2405 of 2023

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

MR STEPHANIDI

Applicant
AND:

MS LAWRENCE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

31 MAY 2024

THE COURT ORDERS THAT:

1.Subject to the maternal grandmother giving an Undertaking as follows, that:

1.I am willing and able to supervise the mother’s time with X and Y.

2.As a supervisor, I understand that it would be my responsibility to be present at all times.

3.I undertake to not permit the mother to travel 30 kilometres out of Sydney with the children.

4.I undertake to not permit the mother to approach within 500 metres of an airport.

5.I undertake to cease time between the mother and the children if she denigrates the father in the presence of the children.

then the children X born 2021 and Y born 2022 (“the children”) shall live with the mother.

2.The father shall cause the children to be delivered to the mother’s care at the entrance to McDonalds Suburb B by 6.00 pm tonight.

3.The children spend time with the father on Monday, Wednesday and Saturday in each week for a period of three hours from 8.30 am until 12.00 pm midday commencing Monday 3 June 2024.

4.For the purposes of changeover the mother shall deliver the children to the entrance of McDonalds Suburb B at the commencement of the children’s time with the father.

5.The mother shall collect the children from the entrance of McDonalds Suburb B at the conclusion of the children’s…

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AGLC
Stephanidi & Lawrence [2024] FedCFamC1F 375
Case
[2024] FedCFamC1F 375
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Stephanidi sought parenting orders regarding his two children with Ms Lawrence, who had returned from the United States of America with the children in mid-2024. The parties had been married in 2020 and separated in 2022. The mother had been the primary caregiver for the children since their birth. The parties were in dispute as to the extent of the father’s contact with the children, as well as allegations of family violence by the father. The father had been charged with assaulting the mother and breaching an Apprehended Domestic Violence Order, and had been convicted of breaching the ADVO and three counts of common assault. The mother alleged that the father had sexually assaulted one of the children. The father denied all allegations of family violence. Both parties sought orders for the children to live with them. The court needed to determine which party the children should live with and what contact the non-resident parent should have with the children. The court considered the evidence and submissions from both parties and the Independent Children’s Lawyer. The court concluded that the children should live with the mother, subject to supervision by the maternal grandmother. The court ordered the father to deliver the children to the mother’s care at a specified location by a certain time. The court also ordered that the children spend time with the father on specific days each week. The court further ordered that the mother be restrained from relocating beyond a certain radius from the Sydney CBD and deposit her and the children’s passports with the court registry. The court also made orders regarding communication between the parties, the preparation of a Child Impact Report, and the payment of the expert’s fee.

The court’s reasoning was based on the best interests of the children and the need to protect them from exposure to family violence. The court found that the mother had been the primary caregiver for the children and that the father had a history of violent behaviour towards the mother and the children. The court was satisfied that the maternal grandmother was willing and able to supervise the mother’s time with the children and to prevent the mother from fleeing with the children or exposing them to the father’s violent behaviour. The court also found that the father had a genuine desire to spend time with the children and that supervised contact would be in the children’s best interests. The court’s orders aimed to ensure the safety and well-being of the children while allowing them to maintain a relationship with both parents.

Orders

Orders of the court

SYC 2405 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR STEPHANIDI

Applicant

AND:

MS LAWRENCE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

31 MAY 2024

THE COURT ORDERS THAT:

1. Subject to the maternal grandmother giving an Undertaking as follows, that:

1. I am willing and able to supervise the mother’s time with X and Y.

2. As a supervisor, I understand that it would be my responsibility to be present at all times.

3. I undertake to not permit the mother to travel 30 kilometres out of Sydney with the children.

4. I undertake to not permit the mother to approach within 500 metres of an airport.

5. I undertake to cease time between the mother and the children if she denigrates the father in the presence of the children.

then the children X born 2021 and Y born 2022 (“the children”) shall live with the mother.

2. The father shall cause the children to be delivered to the mother’s care at the entrance to McDonalds Suburb B by 6.00 pm tonight.

3. The children spend time with the father on Monday, Wednesday and Saturday in each week for a period of three hours from 8.30 am until 12.00 pm midday commencing Monday 3 June 2024.

4. For the purposes of changeover the mother shall deliver the children to the entrance of McDonalds Suburb B at the commencement of the children’s time with the father.

5. The mother shall collect the children from the entrance of McDonalds Suburb B at the conclusion of the children’s time with the father.

6. The mother be restrained by injunction from relocating with the children beyond a 30 kilometre radius from the Sydney CBD.

7. The mother forthwith deposit with the Registry Manager of the Federal Circuit and Family Court of Australia, Sydney Registry all current passports for herself; such passports to be retained by the Registrar pending further order.

8. The father forthwith deposit with the Registry Manager of the Federal Circuit and Family Court of Australia, Sydney Registry all current passports for the children; such passports to be retained by the Registrar pending further order.

9. Orders are made in accordance with paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Independent Children’s Lawyer’s “Minute of orders sought” filed 30 May 2024 as set out hereunder:

7. That pursuant to Part XIVB of the Family Law Act 1975 the mother be restrained by injunction from:

a. Except as provided for in these Orders, providing any documents relating to these proceedings to any other person other than her legal representative;

b. Discussing any allegation raised in these proceedings with or in the presence of and/or hearing of the children;

c. Permitting or allowing any third person who is not appointed by the Court, to discuss with the children or in their presence or hearing any allegations raised in these proceedings;

d. Publishing any information in relation to these proceedings on any social media platform, to any news agency, to any crowdfunding service or any other network which is publicly circulated.

8. That the parties be restrained from making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other’s parent’s family or household to or in the presence or hearing of the children and the parties will ensure that no other person does so.

Short Form Report

9. That pursuant to Part 7 of the Family Law Act 1975 (Cth), the parties and the children are directed to attend upon Ms C (“the expert”) for the purposes of the preparation of a Child Impact Report, noting that the Expert has availability on 6 June 2024.

10. The mother and the father shall:

a. Attend all appointments made with the expert;

b. Ensure the attendance of the children at such times and dates as directed; and

c. Comply with all reasonable directions and requests made by the expert to assist in preparation of their Report.

11. In preparing their report the expert be requested to consider the following matters:

a. The matters set out in s 60CC of the Family Law Act 1975 (Cth);

b. the impact upon the children and upon the children’s relationship with the mother if the Court made orders as sought by the father;

c. the impact upon the children and upon the children’s relationship with the father if the Court made orders as sought by the mother;

d. any other matters that the expert considers important to the welfare or best interests of the children.

12. The mother and the father shall each be responsible for payment of one-half of the fee for preparation of the expert report in the sum of $2,750.00 (two thousand, seven hundred and fifty dollars) and shall pay their share of such fee to the expert within 7 days of request by the Expert.

13. If there is any shortfall in the fee for the expert’s report then the mother and the father shall each pay to the expert on or before the due date for payment their one-half share of the shortfall.

14. The expert shall not be required to release their report to the Court until payment for the report has been received in full.

15. The Independent Children’s Lawyer provide to the expert a letter of instruction prepared in consultation with the parties, and the following documents:

a. A copy of these Orders.

b. The Mother’s Application in a Proceeding and Affidavit filed 22 May 2024 together with any Affidavit in Reply.

c. The Father’s Response to Application in a Proceeding and Affidavit filed 29 May 2024.

d. Material produced to the Court pursuant to Sec 69ZW (or Sec 67ZBE) of the Family Law Act 1975.

16. The mother and the father each be restrained from providing any material to the expert without the written consent of the other party and the Independent Children’s Lawyer.

Other Orders

17. That within 7 days of the date of these Orders, the mother attend upon her GP for a referral to a suitably qualified practitioner for support with any mental health concerns.

18. That the parties communicate with one another via the Our Family Wizard App and all communication between them is to be limited to matters concerning the children only.

19. That the matter be relisted 14 days after the release of the Child Impact Report for consideration of a further Interim Hearing date.

20. That an update Order pursuant to Sec67ZBE be made requesting updating material from NSW Police and DCJ from 4 January 2024 to date.

21. That the Independent Children’s Lawyer have leave to relist the proceedings on 48 hours’ notice in the event of any non-compliance with these Orders.

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).

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

Background

Background to the litigation

Each of the parties took me to various documents that were contained in their tender bundles.BACKGROUND The parties commenced cohabitation in or about early 2020, were married in late 2020 and separated on a final basis on 8 May 2022. Between May 2022 and March 2023, the children lived with the mother and spent time on, what appears to be, an ad hoc basis with their father. The father says that the children spent time alone with him. The mother denies that this was so and says that all occasions of time between the father and the children occurred in her presence. In mid-2022, the mother alleges that the father attempted to strangle her in the presence of the eldest child. The father denies that he strangled the mother and instead asserts that the mother fell on top of him, he grabbed her waist and gave her a strong hug. The child X was sitting next to him when this incident occurred. The father was subsequently charged with a series of offences and an ADVO was taken out for the protection of the mother. Between that date in mid-2022 and early 2023, a number of applications were made to vary the ADVO protecting the mother. The mother contends that the variations were at the insistence of the father and were part of a pattern of coercive and controlling behaviour. In early 2023, the father was charged with a breach of the ADVO and with use of a carriage service for the purposes of menacing and/or harassing. A short time later, the mother flew to the United States of America with the children. Proceedings were then commenced by the father on 6 April 2023 seeking, amongst other orders, the children’s return to Australia. In those proceedings the mother gave evidence that she would return the children to Australia in June 2023. On 17 April 2023, a judge of Division 2 of the Court delivered a judgment ordering that the mother return the children to Australia by 26 May 2023. The mother did not comply with that order, nor did she comply with the assurance that she gave the Court that she would return by June 2023. The father subsequently commenced proceedings invoking the Hague Convention on the Civil Aspects of International Child Abduction for the return of the children to Australia. In late 2023, the father’s criminal matters were heard by a local court. The father entered pleas of not guilty. The father was subsequently convicted of breaching the ADVO and found guilty on three counts of common assault. In mid-2024, a court in the United States ordered the children’s return to Australia and the father promptly returned the children. Days later, the mother returned to Australia. The father did not spend any time with the children between March 2023 and April 2024 as a consequence of the mother concealing from him their location. Since the mother’s return to Australia, the children have spent time with her on only one occasion. Each of the parties make a range of allegations in their affidavits. The mother contends that she has been the victim of family violence perpetrated by the father. That includes allegations that she has been physically assaulted by him, emotionally and verbally abused by him and has been subject to coercive and controlling behaviour. There is objective support for some of the mother’s allegations in the criminal convictions. The mother also contends that one of the children has been exposed to behaviour by the father that raises concerns of sexual assault. These allegations are denied by the father.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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