Bastasic and Petro

[2009] FamCA 549

FAMILY COURT OF AUSTRALIA

BASTASIC & PETRO [2009] FamCA 549

FAMILY LAW – CHILDREN – Equal shared parental responsibility – sole parental responsibility given to the father – with whom should the child live – children should spend such time with their mother as they wish

Family Law Act 1975 (Cth) s 61DA(3)

APPLICANT: Ms Bastasic

RESPONDENT: Mr Petro

INDEPENDENT CHILDREN’S LAWYER: Lessli Strong

FILE NUMBER: CAF 1454 of 2001

DATE DELIVERED: 29 January 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 29 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

In person

Orders

1. The mother’s application for an adjournment is granted.

2. The proceedings are adjourned to 30 June 2009.

3. Until further order the children’s father Mr Petro will have sole parental responsibility for the young people.

4. The children will live with their father.

5. The children will spend such time with their mother as they wish and in this regard both the mother and the father will facilitate such arrangements.

   (a)The Independent Children’s Lawyer (whose appointment is extended until 30 June 2009) will to the extent that she is able to do so facilitate such times for the children with the mother, including making arrangements for the children to have other people present if that is their wish when they are with their mother.

6. I further order that on 30 June 2009 the matter will proceed to finalisation or, alternatively, if the mother is unable or unwilling to participating in the proceedings at that point final orders may be made either in accordance with the orders made on this day or orders discharging all orders in relation to the children because of their age and otherwise their ability properly to deal with questions of their relationship with each of their parents.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1454 of 2001

MS BASTASIC

Applicant

And

MR PETRO

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Even though these are interim proceedings, at least today, it is important that the decision should be made in accordance with the best interests of the children.  Those best interests are declared under the Act to require my taking into account a number of matters, and the two primary considerations that I am to take into account are the benefit to the children having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm.  In this regard it is not possible on the evidence before me to form a concluded view about the benefit to the children at present in having what would be described as a meaningful relationship with their mother.

PRIMARY CONSIDERATIONS FOR THE BEST INTERESTS OF THE CHILDREN

1. There are two elements to those words.  The first is benefit and the second is meaningful.  A meaningful relationship with their mother for these children in these circumstances may be a very limited one, and I do not deny and neither does the father, nor does the Independent Children’s Lawyer, the possibility and in fact the benefit to the children in having some relationship with their mother.  If I were to accept the view that is proposed by some people that meaningful means a substantial and involved relationship then it is not apparent to me that there is a benefit to the children in having such a relationship with their mother at this point.

2. However, it is unnecessary for me to make that decision because I am also required as a primary consideration to ensure that they are protected from physical or psychological harm, and I am satisfied at least on an interim basis that it is important for their psychological and physical wellbeing to live with their father for the time being.  I do not intend this as a criticism of the mother and it is not to suggest that she would knowingly harm them, it is accepting that they are expressing views about where they want to live and what they are able to cope with as children, which I think are appropriate for me to take into account. 

3. I am obliged to take those views into account in any event as some of the additional considerations in coming to my determination, and I have listened to, and I categorise it as the evidence of the Independent Children’s Lawyer, about the most recent statement of the children’s wishes and I accept that there is from those views a need to protect them from having to make decisions and to bear responsibility for the inability of their parents, in particular at the moment their mother, to be able to allow them to develop a normal relationship with her.

4. The children enjoy a close and satisfactory relationship with their father.  The relationship with their mother at the moment is problematic, possibly due to their mother’s illness, and that is a matter which everyone is hopeful will change in the future.

5. I am satisfied from listening to the father that he is willing and able to encourage the children to have a relationship with their mother as is appropriate and is consistent otherwise with their best interests.  I do not form such a conclusion on a final basis and I am conscious of the fact that he has not been the subject of cross-examination, and I am satisfied also that I have not heard all of the relevant evidence on a final basis but, certainly on an interim basis, I am satisfied that that is the case.

6. If there were to be a change in the children’s circumstances I could not reasonably predict how this would affect them except that all of the evidence would suggest that it would operate unfavourably for them.  Accordingly, in my opinion, it is appropriate they should, in effect, stay where they are for the purposes of these interim proceedings. 

EQUAL SHARED PARENTAL RESPONSIBILITY

1. There are, unquestionably, practical difficulties associated with the children spending time with their mother.  That has been canvassed in the proceedings before me today.  The father has expressed the view that he wants to see the children put into a situation where, at least transitionally, they have the protection of other people around them during the time they spend with their mother.  The Independent Children’s Lawyer has offered to facilitate the meetings between the children and their mother, and the two things in my opinion fit comfortably together with the proposal that the children should be able to resume their relationship with their mother so far as they can and whenever they can.

2. I have no doubt the father is capable of looking after the children in a physical sense, and providing for their emotional and intellectual needs certainly on an interim basis and possibly on a permanent basis.  I am satisfied the father has demonstrated in relation to the children the appropriate responsibilities of being a father.  There are no issues of family violence which bear upon the issues that I have to determine today.

3. There is a presumption under the Act that there would be equal shared parental responsibility in relation to the children, with some exceptions.  The general exceptions do not in my opinion apply. However, s 61DA(3) does apply in that this is an interim order and it seems to me that it is not appropriate that the presumption should apply.  In any event even if the presumption were to apply, in my opinion, the evidence before me rebuts the application of the presumption on an interim basis to the extent that the children have now lived, in the case of L for some time with her father, and in the case of F for less time. It would be inappropriate that there should be any competition between the parents. Not that there is any immediately in prospect, about making determinations about the long term matters for the children’s interests.

CONCLUSION

1. In this regard it seems to me that there should be an order that the parental responsibility for the children should rest solely with the father.  That does not mean that he is entitled to disregard the views of, or not to consult with, or to keep the mother informed about, matters relating to the children.  But it does mean that decisions about their long term care, welfare and development are decisions which he should make.  This overrides the position that otherwise applies under the Act which would give each of the parents such responsibility.

2. For these reasons then, and for the reasons I have canvassed with the father and with the Independent Children’s Lawyer this day, I propose to make orders that will apply for a period of six months. 

3. I will grant the mother’s application for an adjournment for a period of six months.  I will make an order that the children during that period will live with their father and that their father will have sole parental responsibility for them.  I will make an order that the children be free to see and spend such time with their mother as they wish.  I will order that the Independent Children’s Lawyer’s period of appointment will be extended, and that she facilitate such meetings insofar as she is able to do so.

4. I will indicate in the orders that at the end of that period if on the adjourned date, subject to the evidence of course that may apply on that day, the matter will proceed or, alternatively, if the mother is unable or unwilling to proceed, the Court may make orders which either continue the existing orders or, alternatively, discharge all existing orders, which will mean that the children would make their own decisions about what they would do with each of their parents.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate:

Date:  24 June 2009