Stylianos & Blagoslav

Case [2023] FedCFamC1F 1071

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Stylianos & Blagoslav [2023] FedCFamC1F 1071

File number(s): SYC 3272 of 2019
Judgment of: BERMAN J
Date of judgment: 14 December 2023
Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – Where the applicant maternal grandparents seek orders to spend time with their grandchildren – Where the respondent parents oppose any time spending – Where the parties have been involved in interpersonal conflict for 20 years – Where the grandparents do not currently have a relationship with the grandchildren – Where all parties lack insight – Best interests – Consideration of s 60CC(M) of the Family Law Act 1975 (Cth) – Where the Court finds that there is an advantage to the children in having a relationship with the maternal grandparents – Consideration of whether the benefit outweighs the potential for detriment – Where the evidence supports a relationship continuing once a foundation has been established – Orders.
Legislation: Family Law Act 1975 (Cth) Div 12A, ss 60B 60CA, 60CC, 69ZN,69ZT.
Cases cited: Baglio & Baglio [2013] FamCA 105
Division: Division 1 First Instance
Number of paragraphs: 237
Date of hearing: 20 – 22 November 2023
Place: Heard in Sydney, delivered in Adelaide
Counsel for the Applicant: Mr Hodgson
Solicitor for the Applicant: O’Sullivan Legal
Counsel for the Respondent: Ms Wallace
Solicitor for the Respondent: Santo Family Lawyers

ORDERS

SYC 3272 of 2019

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

MR STYLIANOS AND MS STYLIANOS

Applicant
AND:

MS BLAGOSLAV AND MR BLAGOSLAV

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:

1.Mr Stylianos and Ms Stylianos (“the maternal grandparents”) be permitted to send X born 2013 and Y born 2015 (collectively “the children”) cards and/or gifts on the following occasions:

(a)The children’s birthdays;

(b)Religious holidays;

2.For the purpose of order 1, the maternal grandparents shall cause cards and gifts to be delivered to the address nominated by the mother and father.

3.Ms Blagoslav (“the mother”) and Mr Blagoslav (“the father”) shall do all acts and things necessary to provide cards and gifts delivered or forwarded by the maternal grandparents to the children in a manner that encourages the children to receive same with the positive reinforcement and support of the mother and father.

4.The mother and father do ensure that the children and each of them acknowledge receipt of gifts and cards to the maternal grandparents in writing, email or other audio visual communication.

5.The maternal grandparents are restrained from including in cards any words that:

(a)Denigrate or criticise the mother and father;

(b)Make reference to the mother and father;

(c)Refer to any adult issue;

(d)Make any arrangements to spend time with the children or invite the children to spend time with them; or

(e)Refer to court proceedings.

6.Each parent and the maternal grandparents do all acts and things necessary as required by the Contact Centre or such other centre as may be agreed to enable…

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Stylianos & Blagoslav [2023] FedCFamC1F 1071
Case
[2023] FedCFamC1F 1071
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with a case concerning the relationship between a child and their maternal grandparents, Stylianos & Blagoslav. The maternal grandparents sought orders to spend time with their grandchildren, which the parents opposed. The parties had been engaged in a long-standing conflict, and the grandparents did not currently have a relationship with the grandchildren. The court was tasked with determining whether it was in the children's best interests to establish a relationship with their maternal grandparents, considering the entrenched positions of all parties and the potential for detriment.

The court examined the legal principles outlined in the Family Law Act 1975 (Cth), specifically focusing on section 60CC, which requires the court to consider the best interests of the child. The court weighed the primary considerations of the benefit to the child of having a meaningful relationship with both parents against the potential advantages of a relationship with the maternal grandparents. The court also considered additional factors under section 60CC(3) of the Act. Ultimately, the court found that there was an advantage to the children in having a relationship with their maternal grandparents, provided that the relationship conflict could be addressed.

The court concluded that while the opposition of the parents and the potential for the children to become more directly involved in the ongoing conflict between the parties were valid concerns, the evidence supported the establishment of a relationship between the children and their maternal grandparents. The court ordered that the maternal grandparents be permitted to send cards and gifts to the children on specific occasions, with certain restrictions on the content of the cards. The court also ordered supervised visits between the children and their maternal grandparents, gradually increasing the duration of these visits over time.

The court's orders aimed to facilitate the development of a relationship between the children and their maternal grandparents while addressing the concerns of all parties involved. The orders were designed to encourage positive reinforcement and support from the parents during the visits and communications, ensuring that the children's best interests were protected throughout the process.

Orders

Orders of the court

SYC 3272 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR STYLIANOS AND MS STYLIANOS

Applicant

AND:

MS BLAGOSLAV AND MR BLAGOSLAV

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:

1. Mr Stylianos and Ms Stylianos (“the maternal grandparents”) be permitted to send X born 2013 and Y born 2015 (collectively “the children”) cards and/or gifts on the following occasions:

(a) The children’s birthdays;

(b) Religious holidays;

2. For the purpose of order 1, the maternal grandparents shall cause cards and gifts to be delivered to the address nominated by the mother and father.

3. Ms Blagoslav (“the mother”) and Mr Blagoslav (“the father”) shall do all acts and things necessary to provide cards and gifts delivered or forwarded by the maternal grandparents to the children in a manner that encourages the children to receive same with the positive reinforcement and support of the mother and father.

4. The mother and father do ensure that the children and each of them acknowledge receipt of gifts and cards to the maternal grandparents in writing, email or other audio visual communication.

5. The maternal grandparents are restrained from including in cards any words that:

(a) Denigrate or criticise the mother and father;

(b) Make reference to the mother and father;

(c) Refer to any adult issue;

(d) Make any arrangements to spend time with the children or invite the children to spend time with them; or

(e) Refer to court proceedings.

6. Each parent and the maternal grandparents do all acts and things necessary as required by the Contact Centre or such other centre as may be agreed to enable the children to spend supervised time with the maternal grandparents.

7. As and from one (1) year from the date of this order:

(a) For a period of six (6) months, the children spend supervised time with the maternal grandparents on the last Sunday of each calendar month from 1.00 pm to 2.00 pm at the B Contact Centre at C Street, Suburb D, Sydney (“the Contact Centre”) or such other supervised contact service as the parties may agree.

8. At the conclusion of the six (6) month period as referred to in order 6, the children spend time and communicate with the maternal grandparents on the last Sunday of each calendar month from 1.00 pm to 5.00 pm with changeover to occur at the commencement and conclusion of such time at the agreed contact centre or such other place as may be agreed between the parties.

9. After the commencement of the children spending supervised time with the maternal grandparents, the children shall be at liberty to communicate with the maternal grandparents via Skype/Facetime from 6.30 pm to 7.00 pm on the second Sunday of each calendar month to be effected by the maternal grandparents telephoning such landline or mobile telephone number as provided by the parents to the maternal grandparents with the parents to facilitate the children receiving telephone calls from the maternal grandparents.

10. Within seven (7) days of the date of these orders the parents shall provide to the maternal grandparents an address at which they may be at liberty to send cards and gifts to the children in order to give effect to 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).

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

It is surprising therefore, that the considerable experience and expertise of each of the parties has not resulted in any appreciable insight as to the inevitable and likely detrimental consequences that the proceedings will have on the children.BACKGROUND The parents commenced a relationship in 2003 and started living together from 2005. The parents married in 2008. X was born in 2013 and Y was born in 2015. The unhappy differences between the mother and the maternal grandmother were demonstrably in evidence by the mother receiving a photograph of herself at aged 3 years which had been ripped into several pieces by the maternal grandmother and then taped together. The mother’s evidence is that she was deeply affected by what she considered was a deliberately hurtful and inconsiderate act by the maternal grandmother. The torn photograph was emblematic of the irreconcilable differences experienced by the mother (and later by the father) and her parents. The maternal grandparents considered that the father was controlling and abusive and for reasons that they were not able to understand, considered that their daughter was in his thrall. For his part, the father understood the level of hostility directed to him by the maternal grandparents and responded with anger and aggression. The mother presents as strongly supportive of the father and considers that her parents’ attitude towards him is a manifestation of her poor relationship with them from her early teens. Each of the parents and the grandparents became hypervigilant for any conduct that might be considered as a slight criticism or corroboration of the fixed views of each of the parties. From the engagement of the parents to the date of their marriage, efforts were made to reconcile the parties’ differences. For their part, the parents ceased further contact with the maternal family which resulted in the grandparents seeking the intervention of the local religious leader to mediate a resolution. There is controversy as to the circumstances of the grandparents being invited to the wedding of the mother and father. The grandparents attended their daughter’s wedding although there remains contention as to how it occurred. There was a suggestion that they were invited to the ceremony but not the wedding reception. Unfortunately, the propensity of the parties to delve into detailed dissection of what occurred, what was said and what adverse conclusion could be reached, continued with unrelenting fervour. In 2014, the parties attended a family event. An altercation ensued involving the father and the maternal grandmother. There is no agreement as to how the unpleasant incident arose however, the maternal grandmother considers that she was reacting to verbal aggression and provocation by the father whereas the father says that the maternal grandmother was intoxicated and resorted to verbal abuse. The altercation involved the maternal grandmother throwing a glass at the mother and then in the fury of the moment, hit the father’s shoulder with a glass object.

Evidence

Evidence Before The Court

Following the joint instruction to Mr F, family therapist, the Court also received a Family Therapy Assessment Report dated 13 November 2022.THE EVIDENCE At the commencement of the trial the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). Each party filed extensive affidavit material, substantial annexures to affidavits and tender bundles containing documents that were largely irrelevant to the issues requiring determination. I considered that the principles as set out in s 69ZN of the Act will be better served by receiving the evidence of each of the parties relied upon but exercising my discretion pursuant to s 69ZT(3) of the Act as to the weight which would be given to the evidence. Neither counsel challenged the stated approach to be taken.The maternal grandfather The maternal grandfather was disarmingly forthright in his condemnation of the father. He considered that the father was responsible for the conflict between the mother and the maternal grandparents. The position of the maternal grandfather is self-evident from the following paragraphs of his affidavit filed 24 May 2019 in support of the orders sought: 30.I am concerned, amongst a lot of other things, with what [the mother]’s son [X] will think one day when he will invariably see a copy of his public birth notice, which appeared in our local [community] newspaper, where his maternal grandparents' names ([Ms Stylianos] and me) and maternal great-grandparents' names are omitted. 31.The omission disturbed me greatly because [the mother] and [the father] would have known what effect it would have on [the maternal grandmother] and me. This was a truly spiteful act.32.Similarly, I am concerned with what [the mother]’s daughter, [Y], will think when she sees a copy of the public announcement of her birth that appeared in our local [community] newspaper where [the maternal grandmother] and my name are not even mentioned.33.It seems clear to me that [the mother] and [the father] have created their personal 'genealogical [exclusion]' for their own benefit, which in turn will be to the detriment of their children. It also baffles me that [the mother] and [the father] cannot envision the likely negative reaction that their children may have against them for depriving them for so many years of the other half of their family unit.34.I would have thought that [the mother] […] would be aware of the inevitable repercussions of her actions on her children. To deny them of their history and family continuity will certainly affect her children's sense of security and belonging. Given the prominence placed on the event by each of the parties, it was inevitable that the maternal grandfather would be asked about the incident in 2014 at the family event. There is little doubt that there was a serious altercation between the maternal grandmother and each of the parents. The parties are not agreed as to who should be considered responsible for the incident. Even though the maternal grandmother entered a plea of guilty to the offences, the position adopted by the maternal grandfather is that the maternal grandmother was not the aggressor and, in his opinion, he did not consider that there was anything that would merit or warrant an apology.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I propose to adopt the following approach:(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child's best interests;(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm;(5)Have regard to additional considerations under s 60CC(3) of the Act; and(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment.PARENTING CONSIDERATIONS I bring to account that the primary considerations pursuant to s 60CC(2) of the Act that relate to the benefit to a child of having a meaningful relationship with both of the child’s parents. Whilst the subsection does not apply in circumstances where the consideration of the best interests of the children is focussed on the extent to which, if any, the children should have a relationship with the maternal grandparents, the breadth and scope of subsection 60CC(M) of the Act enables a consideration of the advantages and disadvantages to the children of having a relationship with the maternal grandparents. As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] "a chance of a meaningful relationship…which is beneficial to" the child was likely to be to the child's advantage and that the absence of such a relationship had "the potential to cause [the child] harm in the long term". The Court is required to focus on the practicality of each of the party's proposal and to consider the factors in s 60CC of the Act (or to the extent that they are applicable) in relation to the circumstances of each case. At present, the children do not have a relationship with the maternal grandparents. The mother and father see no utility in the relationship, or if there is, do not consider that it outweighs their entrenched position that if there is to be a relationship, it should be determined by them. In respect of the proceedings, the maternal grandparents are committed to pursuing a relationship and consider that the advantages to the children of re-establishing a relationship with them and by necessary implication, the extended maternal family outweigh the disadvantage of the opposition of the parents and the potential for the children to become more directly enmeshed in the twenty year conflict ongoing between the parties. The evidence supports a finding that each of the parties considered there would be an advantage to the children having a relationship with the maternal family if the relationship conflict could be dealt with.