XENNON & FRANGOULIS

[2018] FamCA 566

FAMILY COURT OF AUSTRALIA

XENNON & FRANGOULIS [2018] FamCA 566

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – Where the father’s time spent with the children is ordered to be subject to supervision – Where the father admits a contravention of those orders – Classification of contravention – Contravention without reasonable excuse – whether the contravention is a less serious contravention or a more serious contravention – Power to require a person to enter into a bond.

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Variation – Whether the orders permitting the father to spend supervised time with the children should be suspended pending trial – Where the father has partially but not fully complied with previous orders to attend on a therapist or to obtain a report regarding those attendances – Where the family consultant considers that the children should continue to see the father.

Family Law Act 1975 (Cth) div 13A pt VII; ss 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 70NEB, 70NEC, 70NFA(2)

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655

APPLICANT: Ms Xennon

RESPONDENT: Mr Frangoulis

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4110 of 2015

DATE DELIVERED: 27 July 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 20 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O'Connor SC

SOLICITOR FOR THE APPLICANT: SE Lawyers

COUNSEL FOR THE RESPONDENT: Mrs Lindsay

SOLICITOR FOR THE RESPONDENT: Harry Alevizos, Solicitor & Barrister

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That within seven (7) days from the date of this order the father enter into a Bond for a period of one (1) year upon the following conditions:-

   (a)       Be of good behaviour during the period of the Bond;

   (b)       Comply with all current and future parenting orders.

2. That the father shall attend upon Mr B (psychologist) or if unavailable, such other therapist nominated by the Independent Children’s Lawyer (“ICL”) with expertise in the area of anger management and family violence and to comply with all instructions and further counselling and/or therapy as may be recommended by him or her.

3. At the completion of five (5) visits with the nominated therapist which are to occur within ten (10) weeks of the date of this order, the father is to obtain a report from the therapist as to his engagement with therapy and that he has successfully completed the five (5) visits.

4. If the father has not completed the five (5) visits as nominated THEN until further order, paragraph 1 of orders made 4 August 2017 shall be suspended.

5. Upon the provision of a report from the nominated therapist that the father has successfully engaged with the therapy, paragraph 1 of the orders made 4 August 2017 shall be amended by the deletion of the words “supervised by Mr and Mrs C” and the addition of the words “in the substantial presence of Mr and Mrs C”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xennon & Frangoulis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4110 of 2015

Ms Xennon

Applicant

And

Mr Frangoulis

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Frangoulis (“the father”) and Ms Xennon (“the mother”) are the parents of X born in 2009 (“X”), Y born in 2011 (“Y”) and Z born in 2013 (“Z”) (collectively “the children”).

2. Following argument, orders were made on 4 August 2017 that provided until further order for the father to spend time with the children supervised by Mr and Mrs C from 2 pm to 5 pm on Saturday in the first week and on Sunday in the second week, provided that the father’s time with X be subject to her wishes.

3. The principal issue in contention was the need for the continued supervision of the father’s time with the children.

4. The mother’s broad allegation was that the father had perpetrated family violence during the relationship and was demeaning to and derogatory of the mother in the presence of the children. Without supervision his conduct poses a significant risk of psychological or emotional harm to the children.

5. It was Judge Heffernan’s intention to adjourn the matter to enable the father to attend upon Mr B, psychologist for counselling and therapeutic assistance in respect of anger management, controlling and coercive behaviour, with the report to assist Ms D (“family consultant”) to provide an updated family assessment following her earlier report of 12 April 2017. The matter could proceed to trial.

6. The mother issued a Contravention Application on 3 May 2018 alleging various breaches of paragraph 1 of the orders made 4 August 2017 namely that the father spent time with the children in the absence of supervision by Mr and Mrs C.

7. The mother contemporaneously filed an Application in a Case seeking that the father’s time with the children be suspended.

8. The father opposes the suspension of his time and by his Response filed 4 June 2018 he seeks that the requirement for supervision be dispensed with and that his time with the children be unsupervised.

9. He denied that he generally spent time with the children without supervision on the occasions as alleged by the mother, but did admit that on 8 April 2018 he took Z to a shopping centre for a period of about 10 minutes in the absence of his supervisors, although he asserts that Mrs C remained in the car. CCTV footage was obtained by subpoena and when reviewed it is conceded that it shows the father and Z entering and after 40 minutes leaving the Kmart store without the presence of the supervisors.

10. At the hearing the mother elected to proceed with one contravention that alleged that on 8 April 2018 between 2 pm and 5 pm at the Suburb E Shopping Centre the father spent time with Z in the absence of the supervisors.

11. The father admitted the breach and conceded that he did not have a reasonable excuse for doing so.

12. The father’s counsel withdrew his response and following submissions judgment was reserved as to the following matters:-

    (1)Penalty following the finding that the father had breached the order of 4 August 2017 without reasonable excuse.

    (2)Whether the father’s time with the children should be suspended.

FACTUAL BACKGROUND

1. The parties separated in late 2014. The mother alleges that the father verbally threatened to kill her and harm the children. The father followed the mother to her father’s home and following an argument. The police attended and he was charged with aggravated threats to kill, aggravated assault and being unlawfully on premises.

2. The charges were later withdrawn in favour of the father being the subject of an intervention order.

3. The father denies that he had historically perpetrated family violence or conducted himself such that his behaviour could have been considered as either controlling or coercive. He strongly asserted that he had a close and loving relationship with the children, that they have no reason to fear him and any reluctance on the part of the children, but in particular X, is explained by the mother’s determination to sever the children’s relationship with him.

4. The mother alleges that the father is not able to control his anger and she has been the victim of his controlling and coercive conduct both socially and financially for many years. She has been diagnosed by her therapist with Post Traumatic Stress Disorder.

5. X has resisted spending time with her father for at least two years. Her most recent opportunity to do so occurred on 17 March 2018 at a children’s contact service when only Z spent time with the father, both X and Y refused to accompany him.

6. The Court’s concern in relation to the mother’s allegation that the father has poor anger management control is highlighted in the judgment of Judge Heffernan delivered 17 June 2016:-

   15.And so the question then becomes, in all of the circumstances, what order is appropriate for me to make on the application of the father? (I am not going to summarise all of the matters contained in the affidavits. I have read them and I have considered them). I am very concerned about the matters that have been raised by the mother. I do see that there is a degree of risk involved. I am concerned about the allegations of domestic violence by the father, which the mother says has been committed in the presence of the children, and as well those matters which the mother refers to about domestic violence, which has either been directed at or misdirected at the children.

   16.I am concerned about the manner of the applicant’s presentation as detailed in the Affidavit of the maternal grandmother and some of the observations made by the maternal grandfather about the applicant in his Affidavit. I am concerned that, in part, some of the alleged behaviour of the applicant suggests an obsessional aspect to his personality at this time and that it suggests, at least for the purpose of assessing risk, that he has a difficulty in controlling his anger and his emotions.

7. At page 12 of her report of 12 April 2017, the family consultant summarises the entrenched positions of the parties as follows:-

   Clearly a crucial issue in this matter is the alleged violence by [the father]. [The mother’s] claims are very serious, and if accepted, indicated that [the father] has been (and on [the mother’s] report, still is) engaging in coercive controlling violence…

   As noted above, [the father] continues to deny any violence at all, and of course, if he is being truthful, then [the mother’s] claims could reasonably be seen as toxic fabrications aimed at undermining [the father] and his relationship with the children. If the parties continue to maintain their current stances, I can see no way to move forward on final orders without a full trial where the court will be able to consider all the evidence and make various deliberations.

8. The family consultant records that the children, but in particular X and Y, have commented on their recollection of arguments between the parties and behaviour by the father that worried and upset them.

9. While the father had completed the courses and counselling as ordered on 24 June 2016, the family consultant considered that the father would benefit from further counselling with a clinical psychologist who specialised in assisting men gain a better understanding of the consequences of conflict and violence.

10. The conundrum was that unlike X’s resistance to engaging with her father at all, the family consultant observed that Y and Z were “comfortable with their father” and that provided the condition of supervision remained, it would be in the children’s interest to continue spending time with him.

11. The matter came on for trial before Judge Heffernan on 26 February 2018. The trial did not proceed upon the father’s oral application to adjourn the proceedings given that he was at that time not able to secure representation, was unlikely to be able to conduct the proceedings without the assistance of an interpreter and legal aid funding had been refused pending an extant appeal.

12. His Honour adjourned the proceedings to 6 March 2018 and then transferred the proceedings to this Court.

13. The consequence for the parties is that they have been locked in litigation for a number of years with their respective positions becoming more entrenched. The mother considers that while the children would benefit from a relationship with their father, it is unsafe for them to see him without supervision and the father’s position is that supervision has never been necessary and is not now required.

SANCTIONS FOR CONTRAVENTIONS

1. The sections of the Family Law Act 1975 (Cth) (“the Act”) concerning applications for contravention orders are contained at div 13A of pt VII of the Act.

2. Subdivisions C to F of div 13A of pt VII of the Act provide the orders available to the Court that can be made in instances where:-

   ·The contravention has been alleged but not established (sub-div C);

   ·The contravention is established but reasonable excuse for the contravention is found (sub-div D);

   ·The contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (sub-div E); and

   ·The contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (sub-div F).

3. I have heard submissions from the parties as to whether sub-div E or sub-div F should apply. The mother’s counsel submits that the breach is in the more serious category, whereas the father asserts that this is the first contravention and that it should be considered as less serious.

4. I consider that the contravention should be treated as less serious and the provisions of sub-div E should therefore apply.

5. There is little doubt that the father clearly understood that it was a requirement of his time with the children that it be supervised. The requirement for supervision has been in place since the first orders were made in 2016.

6. It is also likely to be the case that until the CCTV footage became available, the father’s position was that he was present in the shopping centre with Z in the absence of a supervisor for about 10 minutes.

7. I am uncertain whether the father’s admission that he breached the order was made for the first time in his June 2018 affidavit.

8. Ms C filed her Affidavit on 4 June 2018 and she states that she and her husband have fulfilled their obligations in respect of supervision pursuant to the orders. It is a significant omission that her affidavit is silent as to her knowledge of the breach of the order on 8 April 2018 and somewhat unhelpfully the following appears at [8]:-

   This is causing him considerable upset and distress and I wonder if the mother has the children’s best interests at heart given that when [the father] did spend time with [Y] and [Z], they were always happy to see and spend time with him, would dance and laugh while at his home and when it was time for him to return them to the mother, they would cry and be reluctant to return to the mother and would plead with me to stay longer. …

9. The Full Court of the Family Court in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 said at [50]:

   … Given the consequences that potentially flow from treating the matter under subdivision F rather than subdivision E, we think it was incumbent upon the trial judge to spell out clearly what considerations enlivened the extra powers available under that section.

10. Subsection 70NFA(2) of the Act does not require the respondent to a contravention application to have previously been convicted of contravening an order without reasonable excuse but rather, it requires the judicial officer to be satisfied that the respondent has “behaved in a way that showed a serious disregard of his or her obligations under the primary order”. I consider that I am obliged to not treat the matter globally but rather, to consider the circumstances of the admitted contravention.

11. It is not suggested that anything untoward happened to Z during the 40 minutes that he was with the father in the shopping centre unsupervised. The father knew that his time with Z should have been supervised. There is no evidence to suggest that supervision was not present either before the father and the child entered the shopping centre or after they departed. Z was able to report to the mother where he had been with the father.

12. While the breach is not trivial, I consider that in the absence of any evidence or assertion that the father’s conduct with the child was inappropriate during the unsupervised period, the breach is more appropriately dealt with under subdivision E.

13. By reference to s 70NEB, there is provision that I may make an order requiring the father to enter into a Bond in accordance with s 70NEC.

14. I do not consider that the circumstances surrounding the breach are of such gravamen that would require the extra sentencing options available under sub-div F. What is required in this case is to ensure that orders of the court are complied with, not merely for the sole purpose of penalising the father but rather, to ensure that the beneficial relationship that exists between the father, Z and Y continues in a way that promotes the relationship but ameliorates any attendant risk until the Court is able to better consider the evidence and make an informed decision as to the future parenting arrangements.

15. I propose to make an order that the father enter into a Bond for a period of one year upon the conditions that he be of good behaviour during the period of the Bond and that he comply with all current and future parenting orders.

SHOULD THE FATHER’S TIME BE SUSPENDED?

1. The family consultant conducted a further assessment and an update family assessment report was published on 8 February 2018.

2. In interview the mother confirmed that Y and Z continue to see their father, but X still refuses to attend. She confirmed that the father’s time was still required to be supervised, but that it was supervised by “someone that her mother knows and this person is a nice lady”.

3. The observed interaction of the children with their father was summarised at paragraph 2.5 of her report:-

   [The father] attended with [the interpreter], whom I asked to join us in my room for the observation. I note [the interpreter] was warm and friendly to the children. The children were very happy to see their father and approached him immediately and comfortably. He responded warmly and affectionately. [The father] was attentive and engaged. The children were very comfortable in his company, sat close to him and seemed relaxed and happy. [The father] was positive to [Y] and to [Z], complimented them at times and [Z] on two occasions spontaneously cuddled his father. When it was time to finish, [Y] gave a warm hug to her father, as did [Z]. [The father] responded in kind. At the finish he asked [Z] “who is your best friend” and [Z] said “Dad”.

4. The family consultant noted that neither party appeared to have changed significantly over the period of her involvement. The mother was unlikely to change her position that the children were safe in the father’s care. The mother was not able or unwilling to cause or assist X to resume a relationship with her father.

5. For his part, the father denied that he was ever violent or behaved in a controlling or coercive manner. He repeated his belief that the mother was negatively influencing the children.

6. The family consultant summarised the father’s presentation as him being:-

   … [F]undamentally impervious to anything suggesting that he has not managed himself appropriately or in some way contributed to the issues that [X] currently has with spending time with him. He simply dismisses everything that [the mother] has said and seems focussed on the view that she is lying in order to present him in a negative light.

7. The family consultant did not consider that there was any real alternative other than the matter to proceed to trial, but importantly, that Y and Z should continue to see their father.

8. It is not controversial that the relationship between the two younger children and their father is beneficial to them and if at all possible should be maintained.

9. It was clearly intended by Judge Heffernan that the Court would be assisted by evidence as to whether there was an anger management aspect to the father’s presentation and if so, whether the therapeutic intervention with Mr B is able to assist the father in developing some insight.

1. The father’s attendance upon Mr B should not necessarily be considered as an admission that the mother’s allegations will be accepted.

2. The father has previously been ordered to attend upon Mr B for at least six sessions, but only completed two.

3. The father’s presentation is further complicated by his clear understanding that his time with his children is to be supervised. However benign, the father must have realised that the mother was very focussed on the need for supervision and in the absence of any explanation by Ms C, it is a reasonable assumption that the father prevailed upon her to remain in the shopping centre carpark whilst he took Z into the centre.

4. The Independent Children’s Lawyer does not support a suspension of the father’s time, but until the Court can better consider the future parenting arrangements, it is important that the Court remain vigilant should the father seek to promote the children into a “disrespectful view of their mother”.

5. I am concerned that the Court’s inability to list this matter with expedition will inevitably result in the interim arrangements being in place for an extended period. Even in the best of circumstances long standing supervision is difficult to maintain and unsatisfactory.

6. Section 60CA requires that in deciding whether to make a particular parenting order, the best interests of a child or children are the paramount consideration.

7. The Court is obliged to consider the provisions of s 60CC as to the primary considerations and s 60CC(2) and the additional considerations in s 60CC(3).

8. In particular, when applying the considerations as set out in s 60CC(2) and considering s 60CC(2A), the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

9. I am mindful that the father has not complied with previous orders in terms of his attendance upon Mr B, psychologist, with a report to be obtained as to his engagement with therapy.

10. I propose to continue the current orders conditional upon the father completing five visits with Mr B within a period of 10 weeks from the date of this order. Should the father not complete the sessions as ordered, his time with the children will be suspended.

11. Upon receiving a report from Mr B or such other nominated therapist that the father has appropriately engaged in the therapy and has completed the required number of sessions, the requirement for supervision will be altered to require either of the supervisors to be substantially present when the children are with their father.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 July 2018.

Associate:

Date: 27 July 2018