Vardalosis and Kanavas (No. 2)

[2008] FamCA 736

FAMILY COURT OF AUSTRALIA

VARDALASOS & KANAVAS (NO. 2) [2008] FamCA 736

FAMILY LAW –  CHILDREN – Best interests – Final orders – Refusal of the mother to present proper options and evidence to court – Mother’s unilateral interstate relocation – S60CC factors

Family Law Act 1975 (Cth)

APPLICANT: Ms Vardalasos

RESPONDENT: Mr Kanavas

FILE NUMBER: MLC 5221 of 2008

DATE DELIVERED: 18 AUGUST 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR GREGORY

SOLICITOR FOR THE RESPONDENT: KENNA TEASDALE

ORDERS

IT IS ORDERED

1. THAT all previous orders of this court be discharged as to children and parenting matters (but not as to property and financial matters the subject of earlier orders).

2. THAT the mother and father have the equal shared parental responsibility for the child born … June 2005.

3. THAT the child live with the father.

4. THAT all time to be spent by the mother with the child and all communications be reserved.

5. THAT the father encourage communications and meaningful time to be spent by the child with her extended maternal family and use his best endeavours in that regard.

6. THAT the father be permitted to enrol the child in an appropriate kindergarten or thereafter in school as he may determine is in her best interests.

7. THAT the mother and father be and are hereby restrained from in any way continuing to denigrate, abuse, threaten or challenge the other.

8. THAT each of the mother and father be and are hereby restrained for applying for an Australian passport in the name of the child and she is not to be taken out of the Commonwealth of Australia by either of them or on their behalf.

9. THAT a transcript of the hearing this day including all of the submissions of the mother be forthwith transcribed, placed upon the court file and made to the parties.

10. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

11. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

12. THAT the Subpoenas Clerk return date hearing of 28 August 2008 be vacated.

13. THAT all extant interim and final applications be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing and from the docket of Young J.

14. THAT the order for the child to live with the father be supervised by a Family Consultant appointed by the Director of the Court Dispute Services pursuant to s65L of the Family Law Act and that, if issues arise and are of sufficient concern then a report is to be made to this court and the matter be appropriately re-listed in the Senior Registrar’s or Judicial Duty List.

15. THAT all previous reservation of costs or other cost applications be dismissed and there be no order as to costs in these proceedings.

IT IS NOTED

A.THAT both parties and members of their extended family were present in court throughout the hearing and judgment.

B.THAT the mother proposes to return to Brisbane on 19 August 2008 to continue her studies.

C.THAT the court has determined not to appoint an Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Kanavas & Vardakas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5221 of 2008

MS VARDALASOS

Applicant

And

MR KANAVAS

Respondent

REASONS FOR JUDGMENT

1. In the further and continuing hearing of Vardalasos & Kanavas the mother has returned from Brisbane for the hearing this day.  She appears in person.  The father retains the services of Mr Gregory, solicitor. 

2. The significant factual background of this matter is fully encapsulated within the reasons for judgment of her Honour Moore J of 8 March 2007.  That judgment followed upon a five-day defended hearing.  The matter has been before me on two previous occasions and there are extempore reasons for judgment delivered 11 July 2008 and 4 August 2008.  When the matter was last before me I made, until further order, orders for the child, born in June 2005, to live with the father until this day.  In those orders I encouraged the mother to organise herself to spend time with and most certainly to communicate with her daughter.  Similarly, I made orders encouraging the maternal extended family to spend time with the child. 

3. Prior to the matter returning to court today the father filed on 12 August 2008 an amended response seeking orders whereby the child was to live with him and any time spent with her mother be as agreed.  In support of that application there is an affidavit filed 14 August 2008 which I have read.  The mother has appeared in person and has, at a very considerable financial cost to her, flown from Brisbane to be here this day.  Her father and her aunt are in court with her.  The child's father and aunt are in court seated behind Mr Gregory.  The mother has filed no further material and has no other application before the court.  She has, however, been given every opportunity to express the orders that she would seek and the lifestyle for her daughter that she would want now to put in place.  In summary, the mother wants to immediately return with her daughter to Brisbane, there to arrange better accommodation and continue her full-time studies. 

4. Since the orders were made on 4 August the mother has taken a decision not to ring her daughter.  She says that is in her daughter's best interests because it presents no upset or emotional disturbance to the daughter.  Likewise, the extended maternal family have had and sought no time spent with or level of communication with the child. 

5. In many ways this is a tragic set of circumstances.  The mother is involved at great detail to highlight to the court the past failures of the father, his psychiatric background (as alleged), his inability to care for his daughter and the failure of the paternal family to fully support him.  On the current facts before the court I do not accept any of those allegations, though clearly the past health issues of the father were a very real matter in evidence before Moore J and those issues were then canvassed in detail.  The reality of this case is that the mother is absolutely adamant and fixed on a return to Brisbane with or without the child.  Her preference is for the child to travel with her.  I well understand that scenario.  But all of the reasons that were provided by me in each of my earlier extempore judgments remain.  There has been no advance by the mother of the factual circumstances of her Brisbane lifestyle.  She still does not contemplate the emotional harm that she may cause to her daughter by excluding the father and his family from her lifestyle, as a move to Brisbane would do.  I have, perhaps beyond that which a court would normally entertain, encouraged the mother to remain in Melbourne and organise a course of study in Melbourne or otherwise get a job in Melbourne so that her daughter could be with her. 

6. Above all else, I have encouraged the maternal family, the aunt, the mother's own parents to want to maintain a level of contact with the child.  Seemingly, my understanding is they would love to see their grand-daughter but that the mother will not put in train or permit that level of communication in her absence.  That is most unfortunate.  My overview of this case is that the child needs the support of all grandparents, aunts and uncles and extended family.  She needs the best of both worlds, but that is simply not being made available to her.  I have done all I can to encourage the mother to open her eyes to a level of reality and this unfortunately is not within the focus of the mother. 

7. In the circumstances of this case there are, therefore, a number of orders that I must now seriously evaluate and in the best interests of the child determine.  I do not want to relist this matter on a continuing monthly basis or even three-monthly basis to monitor the mother's reorganisation and re-establishment of her life in Brisbane.  They are matters private to the mother.  Of course they are fundamental to determining any order for the child.  Again the mother comes to court with no proposals for lifestyle, accommodation, crèche, kindergarten or the like.  She is living in a backpacker's unit in central Brisbane and otherwise has spent time in serviced apartments on the Gold Coast and her proposal would seemingly be that she travels to and from the university and lives near to the university at appropriate times but otherwise, and to obtain cheaper accommodation, lives in the outlying suburbs or the Gold Coast or wherever.  That is almost a nomadic lifestyle.  It is inappropriate for the child. 

8. I have endeavoured to obtain from the mother a more meaningful proposal to spend time with the child, to communicate with her daughter or to establish a more appropriate and child-friendly regime.  Seemingly I have failed on every count of trying to organise some other arrangement.  What I propose to do - and I emphasise in these extempore reasons for judgment that it is with some reluctance - is to make an order for the child to live with the father.  That will not be an interim order to any particular date.  I emphasise that what I prefer is both for the mother and all of her family to spend time with the child, but that seemingly is not achievable in the mother's current emotional and organisational circumstances.  I will make necessary consequential orders that are in the best interests of the child to promote her kindergarten and/or education. 

9. I do intend to have a transcript of the proceedings this morning so that the court can well and truly understand all of the matters that the mother has put to the court.  It is unfortunate as I am delivering these extempore reasons that the mother can only pack up her belongings and evidence, all of her documents, and not understand the gravity of the situation that she is bringing about for her family and the child.  I again stress that the mother is emotional and upset and believes that she simply should take the child interstate with no other arrangement. 

10. I return to the orders now that I will make and I will have these orders transcribed and placed upon the court file.  I emphasise that these orders are made in the best interests of the child.  I have full and proper regard to the appropriate sections of the Family Law Act1975, in particular, s60CA and s65E.  The best interests of the child are determined by the appropriate primary and additional s60CC factors and they are matters to the absolute forefront of my evaluation of this case. 

11. The primary consideration is the benefit to the child of having a meaningful relationship with both parents.  That is going to be a very difficult outcome in this case, given the mother's current intentions, her move to Queensland and, overwhelmingly, her attitude and disposition to the father.  The mother does need immediate and substantial emotional support and counselling, but is not likely to undertake any of that course of action.  I identify for the purposes of these reasons for judgment that I have carefully evaluated the following additional considerations - (b), (c), (e), (f) and (i) of s60CC. 

12. Overwhelmingly, I emphasise the importance that I place upon the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.  That is just not available on the mother's presentation of her case.  Likewise, her attitude to the responsibilities for parenthood is gravely defective and she refuses to understand and acknowledge the importance of both parents having any role in the upbringing of their child. 

13. The most distressing aspect of this case in many ways is the mother's refusal to allow her own parents and her aunt and other loving members of her extended family to be involved with the child.  That is what should occur if the mother is in Brisbane.  All of her family should have time with the child.  I can only encourage the father and I say in his presence and with his sister sitting alongside him that I expect them to take every step that is open to involve the mother's parents and aunt and others in the child’s lifestyle and to give them the opportunity to see and spend time with her. 

14. For all of those matters and notwithstanding the opposition of the mother, I intend to make orders.  I will have these reasons for judgment transcribed, placed on the court file and made available to the parties.  I will have the mother's copy of the orders and the transcript of her discussions with the court this day and these reasons for judgment all sent to the Melbourne unit which remains recorded as her address for service.  I do so in the confidence of knowing that her parents live within the same property boundary.  If in due course there is to be a notice of change of address for service the obligation is on the mother to file an appropriate document with the court.

15. I am also satisfied that the mother well and truly now understands that it is her obligation to file any other meaningful application on proper facts to bring this matter back to court to organise time to be spent between her and her daughter.  I would have ordered any appropriate time today, but that was not sought by the mother in Melbourne.  It will be in Melbourne. 

16. For those reasons which I have given, notwithstanding the various comments and interruptions of the mother, I will make the following final orders. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate: 

Date: