Yathopoulos and Yathopoulos

[2007] FamCA 1481

FAMILY COURT OF AUSTRALIA

YATHOPOULOS & YATHOPOULOS [2007] FamCA 1481

FAMILY LAW – CHILDREN  – Parenting orders – Father neither consenting nor opposing orders sought by mother and ICL

Family Law Act 1975  (Cth)

HUSBAND: Mr Yathopoulos

WIFE: Ms Yathopoulos

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 880 of 2004

DATE DELIVERED: 12 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Justice Brown

HEARING DATE: 12 November 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms G. Liano

SOLICITOR FOR THE HUSBAND: Neville & Co.

COUNSEL FOR THE WIFE: Ms Dawson

SOLICITOR FOR THE RESPONDENT: Lilly Dawson

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr A. Crozier-Durham

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

T.J. Mulvany & Co.

Orders

IT IS ORDERED, with the consent of the wife and the independent children’s lawyer

1. That all previous parenting orders made pursuant to the provisions of the Family Law Act 1975 be discharged.

2. That each of the husband and the wife exercise shared parental responsibility for the care welfare and development of the children G born … February 1997 and V born … September 2001 (“the children”).

3. That each of the husband and the wife exercise day to day responsibility for the care, welfare and development of the children when a child or the children are in the immediate care of that person.

4. That the children live with the wife.

5. That the children spend time and communicate with the husband as follows:

   A        During school term:

   (i)Each alternate week from 6.00pm Saturday until commencement of school Tuesday morning or if the Tuesday is a non-school day 9.00am Tuesday morning.

   (ii)On religious festivals at such times as shall be agreed between the parties provided such agreement be concluded not less than seven days prior to such festival.

   (iii)In the event that Mother’s Day occurs on a weekend during which the children would normally spend time with their father time on that weekend shall cease at 6.00pm on the Saturday preceding Mother ‘s Day.

   (iv)In the event that Father’s Day does not occur on a weekend when the children would normally spend time with their father the children shall spend from 6.00pm on the Saturday preceding Father’s Day until the commencement of school on the Monday following Father’s Day with the husband.

   (v)That the parent not entitled to the immediate time with the children on the birthday of either or both of the children be entitled to spend two hours after school with the children on each of the birthdays of either or both of the children if the day is a school day and four hours if the day is not a school day.

   B.       During holiday periods:

   (i)for one half of the first, second and third term school holidays and in the event of any dispute between the husband and the wife the children shall spend the period from cessation of school term until 5.00pm on the median date with the husband;

   (ii)for one half of the long summer holiday with the husband to exercise time during the first half in 2007 and odd numbered years and the second half in 2008 and even numbered years provided however that in even numbered years the children shall be returned the primary care of the wife not less than 48 hours prior to resumption of school and in corresponding manner the wife shall advise the commencement time of such long summery holidays by two days preceding what would otherwise have been the median date of such long summer holidays.

   (iii)Such further or other time as the parties shall agree by prior agreement in writing.

6. That changeover for the purposes of this order be at the children’s school or not a school day outside the wife’s residence.

7. The Independent Children's Lawyer be at liberty to provide to the Principal of the school attended by the children a copy of this order, the Reasons for Judgement and a copy of the family reports of Mr N dated 2 July 2007 and 2 November 2007.

8. That the husband be at liberty to telephone the children on two occasions each week and the wife shall ensure that a facility is available for each of the children to receive such telephone call.

9. That the husband shall ensure that on one occasion on each alternate weekend which the children spend with the husband, and one two occasions during the first, second and third term school holidays when the children are with the husband and twice weekly on the occasions that the children spend the long summer holiday with the husband each of the children is directed by the husband to telephone the wife and the husband shall arrange all facilities in this regard.

10. That save and except in an immediate and serious emergency, specifically excluding any demands and/or requests and/or like communication from either or both of the children that one parent collect either or both of the children, each of the parents, for themselves, their servants and agents such agents to specifically include the spouses of either of the parents and the adult daughter of the wife, be and hereby restrained from engaging in conduct which will result  in either or both of the children not being in the immediate care of the relevant parent pursuant to the provision of these orders without a personal discussion (as distinct from telephone and/or other electronic communication, having occurred between the husband and the wife (in the absence of their respective spouses), such discussion to be conducted and occur with the facilitation of an independent person retained by the husband and the wife by agreement on a voluntary basis or alternatively with the husband and the wife equally meeting the costs of such person.

11. Each of the husband and the wife for themselves, their servants and agents such servants and agents to include but not be limited to the spouses of the husband and the wife, the adult daughter of the wife and any person or persons enlisted as a messenger, facilitator, driver or like function be and are hereby restrained from:

    (a)insulting and/or denigrating and/or permitting any other person to engage in such conduct towards the other in the sight and/or hearing and/or presence of either or both of the children’

    (b)discussing these proceedings and the orders made herein with either or both of the children save and except in any professionally constituted setting designed to assist the family in resolving issues connected with these proceedings.

    (c)Permitting either or both of the children to engage in denigration and/or conduct and/or conversation critical of either of the parents.

12. At the joint expense of the husband and the wife the husband and the wife shall do all things necessary to enrol in and thereafter attend and participate and cause the children to attend and participate as follows:

    (a)in the case of the husband and the wife, in a post separation parenting course or like program sponsored or recommended by the Manager of the Jewish Community Welfare Council to be completed by 30 June 2008;

    (b)in the case of the children but not limited to the children, a child inclusive therapeutic program sponsored or recommended by the Manager of the Jewish Community Welfare Council for the purposes of dealing with issues arising out of the reports of Mr N.

13. That the appointment of the Independent Children's Lawyer be discharged.

14. All extant proceedings be otherwise dismissed and all matters removed from the active pending cases list.

15. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, the particulars of the obligations that 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 adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders

16. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

17. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 880 of 2004

MR YATHOPOULOS

Husband

And

MS YATHOPOULOS  

Wife

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The father in this case is Mr Yathopoulos, who is 36.  The mother is Ms Yathopoulos, who is 42.  They began living together in 1993 and married in 1995.  They have two daughters; G was born in February 1997 and V in September 2001.  In October 2003, when V was just a little over two, the parties separated. 

2. In March 2004 the wife filed an application in the court and there has been substantial litigation since.

3. Orders were made in April 2004 which provided for the children to live with their mother and to spend time with their father, as agreed.  The parents were to share parental responsibility.

4. Each of the parents has repartnered.  There is evidence about each of their new partners.  The court has the benefit of two family reports from Mr N which succinctly summarise the difficulties the parties have had in reaching agreement about their children since they separated and the drawing into the dispute of each of their new partners.

5. The mother's husband is Mr K and he was interviewed and observed with the girls by Mr N.  The father's wife is Mrs S Yathopoulos - confusing, because there are two Mrs Yathopoulos' in the case - and she, too, was observed with the girls.  She and the father have a daughter, E, and at the time of the report she was again pregnant.

6. The material filed by the parties put forward bitterly contested historic narratives.  Despite the parental hostility and turmoil, the children are described by Mr. N as delightful.  V has had a few problems settling into school, which are being addressed.  It may be – I do not need to make a finding about this – they are nothing more than the usual difficulties some children encounter when they start school.  On the other hand, they may be reflective of the emotional tension that exists in the wider family.

7. The family have had the benefit of a very experienced independent children's lawyer.  He has prepared an outline of case document, which summarises the most relevant matters.  Of particular importance is the need to protect the children from the climate of unhappiness and hostility between their parents and other significant adults in their lives.

8. The case was listed for final hearing today, as a reserve.  The father is represented by Ms Liano.  She has told me her client is not here.  He does not instruct her to contest the orders sought by the mother and the independent children's lawyer, but he does not consent to them.  She has endeavoured to explain the reasons for his stance and that brief submission is recorded on the transcript of these proceedings.  However, this is a court of private law.  It determines disputes between parties to litigation.  It is not like the Children's Court, a court of public law, in which the State intervenes to seek orders in respect of children who, it is asserted, are at risk of emotional or physical harm.  In private litigation, a party must decide what role he or she wants to play.  Some parents elect not to put material before the court and no doubt there are many reasons for that, good and bad.

9. The independent children's lawyer and the mother seek that a number of orders be made, with their consent.  Pursuant to such orders, the parties would exercise shared parental responsibility for G and V.  Each would have day-to-day responsibility when the girls are in his or her care.  The children would remain living with their mother and they would spend time with their father, during school terms, in each alternate week from 6:00 pm. on Saturday until the start of school on Tuesday morning or, if Tuesday is a non-school day, 9:00 am. on Tuesday morning. There are specific provisions in relation to religious festivals, Mothers’ Day and Fathers’ Day, and other special days, such as birthdays.  It is proposed that the children spend one-half of term school holidays with each of their parents and one-half of the long summer holiday with each of their parents.

10. It is proposed that changeovers be at the children's school where that is possible, a useful and neutral solution.  If not on a school day, changeovers will be outside the mother's residence. 

11. A number of proposed orders relate to the father’s capacity to talk to the children on the phone (when they are with their mother) and the children's capacity to talk to their mother on the phone (when they are with their father).  Other orders seek to ensure that both parties have input into important decisions, and are informed about significant aspects of the children's lives.  A number of injunctions would enjoin both parties from behaviour which is likely to impact adversely on the children.  Pursuant to the proposed orders, the parties would enrol in and attend a post‑separation parenting course, as recommended by Mr N, and a child-inclusive therapeutic program, to consider issues identified in Nr. N’s reports. 

12. As I said at the outset, I have read the material filed by the parties and there is much contested ground.  As there will not be a trial, the court is not in a position to make findings about the many matters in dispute.  What the Court can do is look at the whole of that material and focus on the more objective evidence, like that of Mr N.  It must consider whether the orders it is being asked to make are likely to foster the children’s welfare and be in their best interests.  The father’s solicitor has advised that the father will not make any submission in opposition, albeit he will not consent to the orders sought. 

13. I place particular weight on the evidence of Mr. N and the matters raised in the outline of case document filed by the independent children's lawyer.  I am satisfied that it will be in the children's best interests to make the orders sought by the mother and the independent children’s lawyer.  I do so with their consent, but the orders are orders of the court and are not made with the consent of the father. 

14. My remarks will be transcribed and a copy will be available to the parties.  A copy will be on the file. 

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

Date: 12 November 2007