Stephanidi & Lawrence
[2024] FedCFamC1F 375
•31 May 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stephanidi & Lawrence has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTSCHONELL J:
These are parenting proceedings in relation to the parties’ two children, X, born 2021 aged 3, and Y, born 2022 aged 2.
The parties have, between them, reached agreement about the appointment of an expert to prepare a child impact report with the interviews to take place on 6 June 2024. It is anticipated that the report would be available sometime around the end of that month.
The parties have also reached agreement about other orders as proposed by the Independent Children’s Lawyer (“ICL”).
The parties recognise that the orders that are proposed to be made today are very much of a stop gap nature and will remain in place until such time as the Court has the benefit of expert evidence.
The parties are at issue as to the live with and spend time arrangements pending the receipt of the expert report. The mother and the ICL propose that the children live with the mother and spend time with the father three times per week for two hours each day. I did not understand from their submissions that two hours was a fixed time but rather should be one that accommodates the youngest child’s routine and daytime sleeping arrangements.
The father sought orders that the children live with him and spend time with mother on a supervised basis three times per week for up to eight hours on each occasion. The father was not opposed to the maternal grandmother supervising the mother’s time.
The mother relied upon the following documents:
·Application in a Proceeding filed 22 May 2024
·Affidavit filed 22 May 2024
·Affidavit filed 30 May 2024
·Case Outline document
The father for his part relied upon:
·Response to an Application in a Proceeding filed 29 May 2024
·Affidavit filed 29 May 2024
·Case Outline document
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.
The mother’s allegations cover almost the entirety of the parties’ relationship. If accepted, then the children have, over the duration of their life, been exposed to conflict and family violence.
The father contends that the mother suffers from difficulties with her mental health. Part of his affidavit extracts references from various medical records of the mother. The father also contends that he has been subjected to family violence at the hands of the mother. The father also contends that the mother is a flight risk. There is objective support for that contention in the mother’s conduct in failing to return to Australia in breach of an order. He also contends that she has failed to ensure the children have a relationship with him and has sought, by her actions and things she has said to them, to undermine that relationship. He contends that the Court should have significant concerns that the mother will do anything to achieve her ends, that she should not be trusted and could go into hiding or move interstate.
Each of the parties’ affidavits raise very serious allegations that go to the core of each parties’ parenting capacity.
APPLICABLE LAW
Consistent with the provisions of s 69ZL(1) of the Family Law Act 1975 (Cth) (“the Act”), I deliver reasons in short form.
As the factual contentions referred to above make plain, this is a case all about risk. In interim proceedings where there has been no cross-examination, the Court is unable to make findings on disputed facts. However just because the Court is unable to determine or resolve a disputed fact or assertion does not mean that the allegation of risk can be ignored.
In Marvel & Marvel(No 2) (2010) 240 FLR 367, cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654, the Court observed:
122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J, as he then was, observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
In Isles & Nelissen (2022) FLC 94-092, the Full Court cited with approval the observations of Justice Austin in Fitzwaterv Fitzwater (2019) 60 Fam LR 212 to the following effect:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
In circumstances where I am unable to resolve the competing allegations, I must act cautiously. I have read the parties material and listened to their submissions. I am not however required to address every fact or submission made (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447).
Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires that I am to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, s 60CC(2) sets out the matters that are required to be considered. No matter takes priority over the other. The matters to be considered are:
60CC How a court determines what is in a child’s best interests
…
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In considering the matters in s 60CC(2)(a), I must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child’s family.
Section 60CG of the Act requires me to consider, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide some degree of protection from the matters identified in the subsection.
THE BEST INTERESTS OF THE CHILDREN
I recognise that the children’s and the mother’s safety require me to consider the mother’s allegations of family violence and the convictions of the father and the allegations that give rise to the assertions of sexual touching by the father of the child and, in particular, the matters contended by the mother at paragraphs 48–52 of her affidavit filed 22 May 2024.
The mother’s allegations cannot be ignored, nor can the fact of the convictions. If established, they raise serious concerns about father’s capacity to parent the children. That said, I recognise that the mother and the ICL propose that the father should have limited, albeit unsupervised, time with the children. In some respects, the mother’s allegations are inconsistent with the orders she proposes. Nonetheless, some of the allegations are borne out by the convictions following a trial in the local court.
The father suggests that the mother’s care is compromised by mental health issues. His counsel says that he did not know the full extent of the issues until the documents were subpoenaed and ultimately made available for inspection. That said, the references in his affidavit do not give rise to a conclusion that the mother exposed the children to a risk of harm, as to do so would be inconsistent with the position he previously advocated before a judge of Division 2.
He also makes allegations that the mother has perpetrated family violence on him, but again that is inconsistent with his application before a judge of Division 2 at a time when he proposed the children should remain in the mother’s primary care.
The children are not of an age where their views could carry any weight.
The children’s developmental needs are such as to require in their lives the presence of both parents. The circumstances where they have been in the primary care of their mother until very recently gives rise to a concern about the impact upon them of the severing of that relationship with her and the need that it be restored as soon as possible. To date that has not occurred.
The material raises significant concerns about both parent’s capacity to provide for the children’s developmental, psychological and emotional needs. The father’s behaviour giving rise to the convictions demonstrates a failure on his part, as does the mother’s failure to comply with orders and the separation of the children from their father for over 12 months.
I am satisfied that it is to the benefit of the children to have a relationship with each parent and such can be safely accommodated in the orders that I make.
The Act mandates that I must consider any history of family violence and any family violence order, and I have taken those into account including the allegations of each party, the convictions and the ADVO.
The father raises as a concern that the mother is a flight risk and that she will undermine his relationship with the children. His orders however recognise the significance of the mother in the children’s lives by ensuring that they see her three times a week for up to eight hours each time. The risk of flight and undermining is ameliorated, his counsel would submit, by his proposing the maternal grandmother as a supervisor.
I am not satisfied that the disruption to the children of their relationship with their mother and the routine of her parental involvement that has been in place until April of this year is simply replicated by limiting it to eight hours three times per week. The authorities in this Court recognise the significance and importance of routine and stability to the lives of children. Until I am in a better position to assess the risks to these children with the benefit of expert evidence, then I am satisfied, subject to the protection of the children’s relationship with their father by minimising the risk of flight and the possibility of their relationship with him being undermined, that it is in the children’s best interests that they be returned to the care of their mother.
The father contends that the maternal grandmother is an appropriate supervisor subject to her giving an undertaking. In those circumstances, I fail to see why she is only appropriate as a supervisor for eight hours but not longer. In the circumstances of the significant disruption to these children’s lives, it is imperative that they be returned to the primary care of their mother forthwith, albeit that it will take place under the supervision of her mother.
In relation to the children’s time with their father, the mother and ICL propose that it take place for two hours, three times per week, albeit they seem to suggest that a longer period may be appropriate. I accept counsel for the father’s submissions that there is a degree of inconsistency between the allegations and the proposals, however he did not submit an alternative arrangement beyond the children living with him.
Until I am better informed with the benefit of expert evidence, there are risks raised by the mother’s case and I cannot ignore those risks. In light of the concessions by the mother’s counsel, I propose to make orders for the children to spend time with the father for three and a half hours each Monday, Wednesday and Saturday.
I am satisfied, within the confines of this circumscribed hearing, that orders to this effect are in the children’s best interest.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 4 June 2024
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