Tatoulis and Romanos

[2007] FamCA 292

FAMILY COURT OF AUSTRALIA

TATOULIS & ROMANOS [2007] FamCA 292

FAMILY LAW - CHILDREN - With whom a child spends time - Family violence

Family Law Act 1975 (Cth)

APPLICANT: Mr Tatoulis

RESPONDENT: Ms Romanos

FILE NUMBER: MLC 2159 of 2007

DATE DELIVERED: 19 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 19 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tulloch

SOLICITOR FOR THE APPLICANT: John Snodgrass & Associates

COUNSEL FOR THE RESPONDENT: Ms Agresta

SOLICITOR FOR THE RESPONDENT: Berger & Kordos

Orders

1. THAT until further order the parents have equal shared parental responsibility for the child of the marriage, a daughter born in January 2006.

2. THAT until further order the parties by themselves and by their servants and agents be and are hereby restrained from removing or attempting to remove the child from the state of Victoria or the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the child born in January 2006 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

3. THAT the husband’s solicitors forthwith serve a copy of this order on the Australian Federal Police.

4. Usual order for the appointment of an Independent Children’s Lawyer.

5. THAT the husband and wife forthwith provide the other party’s solicitors and the Independent Children’s Lawyer a list of all medical practitioners who have been consulted in relation to the child.

6. THAT the parties each have leave to issue a subpoena to each of the following:

(a)Department of Human Services

(b)M Medical Centre

(c)C Hospital

(d)B Maternal Health Centre

(e)Royal Children’s Hospital

(f)Any other medical practitioner referred to by the husband and wife in compliance with paragraph 5 of these orders and this matter be listed in a directions hearing list on April 2007 at… for the release of subpoenas only.

7. THAT in the event of the child requiring any medical treatment during a period when the child is in the care of either party, that party to immediately notify the other party as to:

(a)The nature of the illness suffered by the child.

(b)The name of the treating medical practitioner and/or hospital attended.

(c)The diagnosis given in relation to the child, and

(d)Any treatment prescribed for the child.

8. THE parties to attend upon a counsellor or psychologist to be nominated by the Independent Children’s Lawyer for the purpose of the preparation of a welfare report and each party to pay one half of the costs of each of the said welfare report.

9. THAT each parent forthwith attend upon a psychiatrist to be agreed between the parties solicitors and the Independent Children’s Lawyer for the purpose of a psychiatric report being prepared in relation to each of them and each party is to pay one half of the cost of each of the said reports.

10. THAT all extant applications be otherwise adjourned to the Judicial Duty List at 10am on 21^st May 2007.

11. THAT the parties shall attend conciliation conference in relation to financial matters on 28 May 2007 at 2:15pm.

12. THAT the Case Assessment Conference date listed for 27 March 2007 be vacated.

13. THAT each party file and serve any further material on which they seek to rely no less than seven days prior to the adjourned hearing date.

14. Certify for Counsel.

15. PURSUANT to S65DA(2) and S60B 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.

NOT BY CONSENT:

16. UNTIL further order the husband shall do all acts and things necessary to ensure that gas and electrical services are reconnected forthwith to the property at J

IT IS DIRECTED:

17. TRANSCRIPT  of reasons for judgement to be placed on the court file.

ORDERS SOUGHT BY HUSBAND:

18. UNTIL further order the child live with the wife.

19. UNTIL further order the child shall spend time with the husband supervised at all times by his sister Ms T as follows:

(a)From 9.00am to 11.00am each Thursday, Saturday and Sunday.

20. THAT for the purposes of paragraph 19 of these orders all changeovers shall take place as follows:

(a)On Thursday at 9.00am outside Northcote Police Station;

(b)On Thursdays at 11.00am outside Malvern Police Station;

(c)Otherwise outside Greensborough Police Station.

21. THAT pursuant to section 65DA(2) and section 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.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2159  of 2007

Mr Tatoulis

Applicant

And

Ms Romanos

Respondent

REASONS FOR JUDGMENT

1. The child is just 14 months old and her parents separated only a few weeks ago.  They cannot agree as to the interim arrangements for her in terms of the time her father will spend with her, although they are able to agree on a number of matters, including that there should be an Independent Children’s Lawyer (ICL), psychiatrists' reports, a Family Report, and a watch list order.

2. The father seeks to spend time with the child for two hours each Tuesday and Thursday morning, and from 10 am to 5 pm every Saturday and Sunday.  The mother seeks orders that there be no time at all between the father and the child, not even on a supervised basis. 

3. Each parent raises allegations against the other.  The father says that he believes the mother suffers post-natal depression and has been acting irrationally.  He also says she has threatened to remove the child overseas.  The mother says that she believes the father suffers depression but in any event he has been violent to her, and towards the child, and violent to her in the child's presence, as well as making serious threats to her health and her life - threats that have involved the child as well.  She has also set out some suggestion that he mixes with underworld people.

4. As to the legal principles, I must apply Part VII of the Family Law Act as amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act, following the legislative pathways set out by the Full Court in Goode v Goode (2006) FamCA 1346. That is a decision of Bryant CJ and Finn and Boland JJ delivered on 15 December 2006.

5. Before setting out the steps in an interim hearing, the Full Court in Goode's case acknowledged as apposite some comments of a previous Full Court in Cowling's case.  It acknowledged that the procedure for making interim parenting orders is necessarily an abridged process where the scope of the inquiry is "significantly curtailed" compared to the ultimate hearing.  I note it is the more so when, as here, I am being asked to make a very short‑term decision which is really preliminary to an interim decision that is then likely to remain until the final hearing. 

6. In observing that there are passages in Cowling that do not sit comfortably with the Act as amended, the Full Court then noted that:

   It can be fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.” 

7. The court went on to consider that where there is a status quo or a well‑settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns, the court must follow the structure of the Act and consider the various steps in the Act rather than simply saying the status quo will apply.  It noted that is not to say that stability derived from a well‑settled arrangement may not ultimately be what the court finds to be in the child's best interests.

8. I must consider best interests by considering the matters set out in section 60CC of the act.  Section 60CC(2) sets out the primary considerations and section 60CC(3) the additional ones. 

9. The first primary consideration is the benefit to the child in having a meaningful relationship with both of her parents.  This is an important consideration, particularly at the child's tender age.  It is important not to interrupt or undermine her developing bonds.  Her mother suggests she has virtually no relationship with her father.  That claim can be tested in due course.  But even if her mother has been her primary carer, the child certainly until recently has still been living with her father and he must have been one of the main adults in her life. 

10. I must then consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  This is also a very important consideration in this case.  For his part, the father raises concerns as to the mother's post-natal depression.  The mother raises not only serious but very detailed allegations against the father in relation to violence and threats.  She has an intervention order against him, in fact an order made in the child’s favour as well as her own.  He did consent to those orders, but without admitting liability. 

11. I note too, in trying to assess the full picture with such limited material, that the mother made a complaint about violence to the Department of Human Services in the course of last year.  She apparently withdrew that complaint.  There are differing versions as to why she withdrew the complaint.  In any event, it seems that DHS stayed involved for some time, giving some assistance to the parents.  Obviously it will be critical to look at the material from the department.

12. The issues that the mother raises are very serious indeed.  Of course they cannot be tested today.  But they certainly do go beyond the broad brush allegations that I frequently see in this court.  I am concerned too, when trying to assess the picture today, to hear through her counsel that the mother is living in a home registered in the paternal grandfather's name and that on her version the essential services to the house have been cut off.  Again I cannot get to the bottom of that today, but it adds to the alarm that arises from her allegations.

13. As to the various additional considerations, only some are relevant at this early stage.  As to the nature of the relationship of the child with each of her parents, there does not appear to be any substantial argument against the child being close to her mother.  The mother argues, as I have said, that the father has no connection or role with the child.  The father disputes that, and that really does need to be tested. 

14. The likely effect of any changes in the child's circumstances is a very important consideration for such a tiny child at such an unsettled time in her life. 

15. The capacity of each parent to provide for the child is something else that does need to be tested, given the allegations raised by each parent. 

16. Obviously enough, the family violence considerations that I have already mentioned, are at the heart of the case. 

17. In terms of the equal shared parental responsibility, the parents apparently agree that for the very short term they shall retain that joint responsibility.  I then have to consider equal time, but for today's purposes the parents are not seeking that.  However, the father does seek substantial and significant time with the child. 

18. I have to say that I am very concerned for the child.  I am concerned that her relationship with her father should not wrongly be stopped or interfered with on the basis of untested evidence.  But I am also very concerned that I not put her at risk, on the basis of untested denials, to what are, as I have observed, serious and detailed allegations of violence around her and to her.  I am concerned as well by the prospect that the mother may be suffering post-natal depression, but thankfully that is something that will quickly be assessed with psychiatric evidence, just as the claim of the mother that the father has depression will be assessed. 

19. The balance, I emphasise for the very short term, is for the father to see the child, but in a safely controlled setting.  I want to emphasise to both parents that I have no views as to what will be decided in the longer term, nor what is going to happen at the end of this brief adjournment.  I am conscious that this is a result that is not consistent with what either seeks.  I am doing the best I can with terribly limited material, just trying to keep a balance until the court has more information. 

20. On the basis of what I have noted, I do need to know that the supervision is sound, strong, safe supervision.  I need to weigh up three possibilities.  One is that it take place at a Contact Centre. In some areas that is just not feasible because the waiting list is too long.  As I understand it from another case, there are some areas in Melbourne at the moment where there is a very short waiting list.  I am told N is one of those - I do not know whether that is good, bad or indifferent.

21. Another possibility is for paid supervisors.  The upside is that everybody is protected, including the father's family, from any allegations.  It is at arm's length. But it involves expense. 

22. The other option is for family members to supervise.  That has an upside and a downside. 

23. I want to be addressed by all parties about those various options so that I could then make a decision with the benefit of hearing from them.

24. With a small child, I know that shorter, regular times of contact are what is required.  I am not going to order at this point that she spends all day Saturday and all day Sunday with her father.  The two hours on each of Tuesday and Thursday strike me as quite sensible, if he is available and we can put in place some other supervision.  But I would be looking at another few hours on either Saturday or Sunday so that every two days or so she is seeing her father.  But not from 10.00am to 5.00pm at this stage, given her age.

DISCUSSION

1. As is often the case, I am being asked to choose between two less than ideal options.  But, on balance, I decide that it should be the father's sister who supervises the time.  That is on the basis that this child has already gone six weeks without seeing her father.  To increase that for another few weeks, and/or thereafter to have the time she spends with her father further reduced, as would be the case with a centre, or a paid supervisor is probably more risky to her, than being supervised by the sister.  That is particularly so when what is raised against the sister, who herself has children that she cares for, is an issue of alcohol, with sketchy detail, and on any view, is less likely to be relevant at the times of day and for the short contact periods that I am suggesting.  It was also suggested she had an issue with driving, which apparently is not current, but in any event we can talk about arrangements that may or may not involve the sister in any driving. 

DISCUSSION

1. Trying to fit in with the supervisor, I have in mind for this brief period a few hours on both Saturday and Sunday, as well as Thursday.  I mean, the mother cannot go away for a weekend for eight weeks, I do not think that matters.  These things will change.  It might change very dramatically when this information is gathered.  It might change to nothing.  It might change to a very substantial amount.  It might remain the same with a few adjustments.  But between now and then, if the child is to have some recollection of her father, I want her to share time with him for more than four hours a week.  So I going to make it Saturday morning and Sunday morning, and I am happy with Thursday morning, if that is what suits Ms Agresta's client best.

DISCUSSION

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  19 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TATOULIS & ROMANOS