Birossi and Birossi

[2008] FamCA 441

FAMILY COURT OF AUSTRALIA

BIROSSI & BIROSSI [2008] FamCA 441

FAMILY LAW – CHILDREN - Parental responsibility - Knowledge of children's address

Family Law Act 1975 (Cth)

APPLICANT: MR BIROSSI

RESPONDENT: MRS BIROSSI

FILE NUMBER: CRC 134 of 2008

DATE DELIVERED: 20 JUNE 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 20 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HANNON

SOLICITOR FOR THE APPLICANT: RANDLES COOOPER & CO PTY LTD

COUNSEL FOR THE RESPONDENT: MR MACLEOD

SOLICITOR FOR THE RESPONDENT: SLATER & GORDON

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CRC 134  of 2008

MR BIROSSI

Applicant

And

MRS BIROSSI

Respondent

REASONS FOR JUDGMENT

1. This matter came before me on 23 May 2008.  Whilst there were a number of applications, the major reason it was before me was because the husband had filed a Notice of Appeal against a state magistrate sitting at Coffs Harbour.  That magistrate made an order for a recovery order relating to one of three children of the marriage. 

2. In addition to the appeal, there were other parenting applications.

3. In addition to making the recovery order, the magistrate adjourned the proceedings to the Federal Magistrates Court sitting at Coffs Harbour.

4. Before me, the husband appeared represented by counsel.  The wife who was resident in the Coffs Harbour area did not attend but was represented by counsel.

5. In between the time that the state magistrate made the recovery order and the matter coming before me, the authorities had executed the recovery order and the child had returned to her mother.

6. Leaving aside arguments about jurisdiction, I adjourned the proceedings back before me today 20 June 2008 for the purposes of determining what the interim position should be notwithstanding that the Federal Magistrates Court was seized of the substantive child issue.

7. Using some good common sense, the parties have resolved the interim issues.

8. There was one issue about which there was no resolution and upon which I indicated I would give reasons for the determination I made.  There is a second issue about which I indicated I wished to make a comment.

9. The agreement between the parties arose, in fairness, out of a comment that I made that I felt it was inappropriate for the matter to be determined in Melbourne and having regard to the substantive issue before the Federal Magistrates Court and the child having returned home, I was not prepared to disturb the status quo.

10. The parties in this case are clearly unhappy with each other.  Even subsequent to the orders that I made on the previous occasion, there are disputes about who is doing what and whether the relationship between the husband and the children from afar, is being fostered.  No doubt that is an issue that will be determined as part of the final trial of these proceedings.

11. The contentious issue before me was the fact that notwithstanding agreement had been reached, the wife refused to agree to the husband being kept informed of the residential address of the children.  At best, she was prepared to concede that he should know the contact address.  Mr MacLeod of counsel on behalf of the wife gave me a number of reasons why there should not be an order for the disclosure of the residential address.  They included that there had been a visit to the wife’s home by police which she says was orchestrated unnecessarily by the husband and other matters associated with her personal fears and stability.

12. On the other hand, Mr Hannon of counsel on behalf of the husband argued that his client had equal shared parental responsibility for these children and had every right to know where they were living.  Mr MacLeod said in response to that however that the children had not changed schools so that the husband knew exactly where they were and how they were faring. 

13. It is trite to say that parents who have equal shared parental responsibility need to be able to make decisions about the future long term welfare of their children.  In my view it would be a complete anathema for a parent to have that responsibility yet not know where his child was living.  In those circumstances, it is inappropriate for the husband not to know that his children are living at a particular location whether that may be changed from time to time or not. 

14. In addition, if there are questions of personal safety, they can be addressed by other remedies.

15. The second issue about which I made comment is as follows. 

16. It transpires that the parties’ relationship broke down irretrievably at a point in time when they were both living in the North Coast area of New South Wales.  On the evidence as I perceive it, the husband made a unilateral decision to return to Melbourne with his parents. 

17. Doing the best I can with the evidence, it seems that he had a willing and compliant daughter who went with him but the other two younger children were not then available at the time that he wanted to go.  I do not stay to work out whether or not the children had a desire to go with their father in any event.

18. What the husband says is that the daughter was quite strident in her criticism of her mother and desired to go. 

19. Today I have been given an affidavit which indicates that the parties had correspondence about which the husband was warned that an application would be made if he did not return the child.

20. What transpired was that the wife through her solicitor, and not the solicitor now representing her, went to the local magistrate based on evidence indicating the poor relationship between the parties.  For reasons which are not at all clear, she traversed a significantly long history.  None of that was relevant to the issue of the immediate problem.

21. The state magistrate had obviously been told of the correspondence and the fact that the husband was warned of the impending application if he did not return the daughter.  Significantly for my purposes however, the application was made on an ex parte basis.  It should not have been.  There was absolutely no basis in my view that would have satisfied the rules of this Court to bring an application on an ex parte basis. 

22. Parents who act unilaterally however ought not to be encouraged either.  A court in the future may be very critical of the course of action taken by the husband.  I can certainly indicate that I would be.

23. What should have happened however was that having regard to the fact that the wife knew exactly where the husband was and what he had done, the magistrate should have made an order that the husband attend the court with the child immediately for the purposes of determining what was in the best interests of the child.  Had the husband then not complied, a recovery order would have been justified.  I say that for three reasons. 

24. The first is that the child was subjected to the trauma of being collected by the police.  That can hardly be in the best interests of the child any more than being unilaterally snatched by the husband.  That is particularly a problem in circumstances where the child is resistant to returning home in circumstances where unilateral action has been taken. 

25. A second is that the court and the resources of the police have been unnecessarily used.

26. The third reason is that it is well-known that this Court reacts strongly to unilateral action taken by a parent.  The course of action which I have indicated above would invariably in this case have given an opportunity for the matter to settle calmly where responsible parents would have been able to say to this young child that it was not the child’s problem and that the parents would sort matters out.  Failing to take that course of action gave one parent the opportunity to point the finger at the other parent as causing the trauma. 

27. I indicated very clearly to the parties that I was going to put everybody back into the position that they were prior to the unilateral action of the husband so that they as parents with equal shared parental responsibility, could act in the best interest of their child and if they did not, then the Court would intervene.

28. Least it be said that I am unnecessarily and unfairly criticising the magistrate who made these orders, I want it known that I accept that magistrates only act on the basis of the information presented to them and they have little time in busy lists to think of the niceties of the matters that I have contemplated.  My criticism is directed to the lawyers who seek these sorts of applications unnecessarily.

I certify that the preceding Twenty Eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 June 2008