Bostoi and Bostoi

[2011] FamCA 567

FAMILY COURT OF AUSTRALIA

BOSTOI & BOSTOI [2011] FamCA 567

FAMILY LAW – CHILDREN – interim parenting – where a child is resisting complying with orders made after a final hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Bostoi

RESPONDENT: Mr Bostoi

INDEPENDENT CHILDREN’S LAWYER: Mr O'Dowd

FILE NUMBER: SYC 2851 of 2009

DATE DELIVERED: 22 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 27 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nash

SOLICITOR FOR THE APPLICANT: Feeney Lawyers

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

ORDERS (made 21.2.11)

1. The mother’s application in a case for a recovery order filed 17 January 2011 be adjourned and may be relisted before me on 7 days notice by the mother or the Independent Children's Lawyer.

2. Pending further order, the father is to vacate the former matrimonial home at unit 1, B Street, Suburb C (“the Suburb C property”) during the following times:

   2.1.From 8.50am until 5.10pm each alternate Saturday; and

   2.2.From 3.20pm until 8.35pm each alternate Wednesday.

3. The father ensure, so far as he is able, that he is not within 100 metres of the Suburb C property at the time the mother arrives at the Suburb C property or leaves the Suburb C property.

4. The father, as soon as is practicable, secure the main bedroom and the study of the Suburb C property and store in those rooms any documents and effects that he so chooses that he claims should not be the subject of the wife having access to them.

5. The mother occupy the Suburb C property from 9am until 5pm every alternate Saturday and from 3.30pm until 8.30pm each alternate Wednesday. The first Saturday be 26 February 2011 and the first Wednesday be 2 March 2011.

6. During the times the mother has a right to occupy the former matrimonial home in accordance with these orders, D and E (“the children”) are to be with their mother pursuant to the orders made 27 October 2010.

7. 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 REQUESTED THAT:

1. The Docket Registrar, as soon as possible, appoint a case assessment conference for the purposes of dealing with the outstanding applications in respect of alteration of property interests of the parties.

IT IS NOTED THAT:

1. The order requiring the mother to occupy the former matrimonial home does not restrict her from leaving the home during the times referred to in these orders with the children for purposes that she may choose.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2851 of 2009

Ms Bostoi

Applicant

And

Mr Bostoi

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties in this matter have undergone significant litigation before Stevenson J and final parenting orders were made in October 2010. The two children of the marriage, D and E, are aged 13 and 10 respectively.

2. On 23 December 2010 the child D refused to return to his mother after holiday time with the father. The mother seeks recovery orders with respect to D.

3. This is a case of considerable difficulty in terms of the psychological dynamics that are taking place.

4. The matter first came before me on 24 January 2011 and I made interim orders for D to spend time with the mother once a week until I could hear the matter on 17 February 2011. On 17 February 2011 I made further interim orders and I now publish the reasons for those orders.

ORDERS SOUGHT

1. The mother’s Application in a Case filed on 17 January 2011, was for an order in the following terms:

   That a recovery order issue directed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia requiring them to return the child, [D], born … 1997, to the mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

2. The mother continues to press for a recovery order. If it is not granted, in the alternative, the mother supports the order sought by the Independent Children's Lawyer.

3. Counsel for the mother indicated that only one recovery order would be applied for.  The mother wished to have an opportunity to attempt to see whether or not some extended time with D might produce a change in his currently expressed views.

4. The Independent Children's Lawyer seeks an order in the following terms:

   1.That the mother’s Application in a Case for recovery orders filed on 17 January 2011 be dismissed.

   Pending further Order:

   2.The father shall vacate and the mother shall occupy the former matrimonial home at, [B Street, Suburb C], New South Wales during the following times:

   (a)From 9am until 5pm every alternate Saturday when the children [D] and [E] (“the children”) are to be with the mother pursuant to orders made on 27 October 2010; and

   (b)From 3.30pm until 8.30pm each alternate Wednesday when the children are to be with the mother pursuant to orders made on 27 October 2010.

5. It should be noted the Independent Children's Lawyer has not sought to vary Stevenson J’s orders but simply to have a further order made to assist in the implementation of part of those orders.

6. I do not accept the categorisation by counsel for the father that the orders sought by the Independent Children's Lawyer are a “knee jerk” reaction to the situation.  I accept that it is a properly considered application. Subsections 68LA(2) to (4) Family Law Act 1975 (Cth) make it clear that the role of the Independent Children's Lawyer was not simply to parrot expressed views of a child but rather to make an independent assessment as to what might be in a child’s best interests. 

7. In his response of 12 January 2011, the father seeks the following orders which are relevant to the mother’s Application:

   3.That Order 3 of the Orders of Justice Stevenson made 27.10.2010 be suspended until further Order.

   4.That Order 4.4 of the Orders of Justice Stevenson made 27.10.2010 be varied to permit the child [D] to live with the father until the determination of the husband’s Appeal filed 23.11.10.

   5.That the father facilitate [D] spending time with the mother by delivering [D] to the mother at times requested by [D].

8. Order 6 as sought on 12 January 2011 is to the effect that Justice Stevenson be disqualified from any further hearing or determination of the proceedings. Justice Stevenson is not currently dealing with the case and I do not intend to entertain that application.

9. The father did not seek in the proceedings before me to agitate applications 3, 4 and 5 of his response. The father sought an order that the mother’s application for the recovery order be dismissed. The father opposed the alternate order sought by the Independent Children's Lawyer. In the alternative, the father proposed that D spend time with the mother from 11am to 3pm each Sunday.

10. After I received evidence (including oral evidence from the father) and received submissions and made orders, the father indicated that there was an outstanding application in a case which he sought to pursue, contained in his response of 12 January 2011. That application sought orders that the children attend on Dr F (my understanding is that they are).  The second application sought an adjournment.  The third application sought a suspension of the orders of Justice Stevenson. That application was made in circumstances where:

    14.1.There is no application for a final order to that effect in the proceedings before me;

    14.2.I am told that an appeal has been lodged against the order of Justice Stevenson and that that appeal has been expedited and is scheduled to be heard in the near future by the Full Court. I was informed that if the father’s appeal is successful, he is seeking the Full Court to make orders that the children live with him;

    14.3.A stay application was refused by Justice Stevenson (which is in effect the same order as sought by the father in this application); and

    14.4.I am unaware as to whether or not the order made by Justice Stevenson dismissing the father’s application for a stay has been appealed.

11. Counsel for the father requested that these applications be given a further interim hearing date. I declined to do so, on the basis that there is no application for final orders in any proceedings before me in the terms sought in the interim application. I am unaware of what orders the father seeks from the Full Court if his appeal is successful.

DOCUMENTS RELIED UPON BY THE PARTIES

1. The following documents were relied upon:

   16.1.Report of Prof G dated 13 December 2009 (interview with D alone);

   16.2.Report of Prof G dated 19 May 2010 (interview with D alone); and

   16.3.Reasons for Judgment of Stevenson J dated 27 October 2010.

2. The mother relied on the following:

   17.1.Application in a case filed 17 January 2011;

   17.2.Mother’s affidavit filed 23 December 2010;

   17.3.Mother’s affidavit filed 17 January 2011;

   17.4.Mother’s affidavit sworn 21 January 2011; and

   17.5.Mother’s affidavit filed 17 February 2011.

3. The father relied on the following:

   18.1.Response filed 12 January 2011;

   18.2.Father’s affidavit filed 12 January 2011;

   18.3.Father’s affidavit filed 21 January 2011;

   18.4.Father’s affidavit filed 16 February 2011;

   18.5.Affidavit of Dr H filed 24 January 2011; and

   18.6.Affidavit of Mr I filed 24 January 2011.

CHRONOLOGY

1. D was born in 1997 (13 years) and E was born in 2001 (10 years) (“the children”).

2. The parties participated in defended proceedings before Stevenson J, in which Prof G produced two reports. Prof G’s second report was based on interviews of the mother and children in March 2010. 

3. The hearing took place 25 February 2010 and 25 to 28 May 2010.  Her Honour delivered a judgment on 27 October 2010. 

4. The father has appealed Stevenson J’s orders.  He sought a stay of the orders and Stevenson J refused that stay on 17 December 2010.  At that time the boys had been holidaying with their father since 16 December 2010. 

5. D refused to return to his mother on 23 December 2010.

6. This matter first came before me on 24 January 2011 and was adjourned to 17 February 2011 after I had made interim orders on that day. I indicated that I would deal on 17 February 2011 with the mother’s application for the issue of a recovery order and I indicated I might also further consider the father’s application to issue a subpoena to D’s school counsellor. When the matter came before me in the duty list on 24 January 2011, D had not seen his mother for over five weeks. 

7. Pursuant to orders that I made on 24 January 2011, D saw his mother for four hours on 28 January 2011, 5 February 2011 and on 12 February 2011. 

8. The children have been seeing Dr F.  They had an appointment with her on 1 February 2011 and I am told would have two subsequent appointments in the next two weeks after the hearing.

CONSIDERATIONS

1. The primary considerations I must have are the benefit to D of having a meaningful relationship with both parents, and that D be protected from harm. These two factors are dealt with in the section below, regarding the father’s influence on D’s wishes regarding the relationship he has with his mother, and the effect of that influence and it’s consequences on D’s wellbeing.

D’s Wishes

1. Counsel for the mother’s fundamental submission was that the father was simply trying to relitigate this case by any means that he can find and is the force behind D saying that he does not want to see his mother.  Counsel for the mother submitted that in the circumstances of this case, the court’s authority should be enforced. 

2. The primary submission by counsel for the father is that D’s voice is not being listened to.  The weightiest part of that submission is that there is some suggestion that D is expressing suicidal ideation. The family General Practitioner, Dr H went on affidavit to say that on 20 January 2011 D appeared nervous and anxious at a medical appointment and started talking about the family situation. He said during the appointment that “All I do is talk to people and nobody listens to me. It just makes me anxious. If they take me back to live with mum I am going to run away or kill myself”.

3. Counsel for the mother agreed that, on an interim basis, it should be accepted that the doctor is accurately reporting the words said.  The doctor goes on to opine that the comments made about D harming himself were serious.  Counsel for the mother says this evidence should be discounted because:

   30.1.Dr H gave evidence on the father’s behalf at trial; and

   30.2.The father was present during this whole session with the Doctor. 

4. The effect of this submission was that I should infer, particularly given the findings by Stevenson J about the father’s personality, that the father’s presence during this interview had an effect on D’s presentation.  The submission is that I should consequently place little weight upon D’s expressed statement and the doctor’s opinion.

5. Counsel for the mother also made the point that the doctor did not choose to make a mandatory report immediately and had not done so in the two days between the appointment with the doctor and when the matter came before me on 24 January.  I was informed on that day by the Independent Children's Lawyer that, in a conversation with the Independent Children's Lawyer and the doctor, the doctor had indicated that he intended to make a report.  Given that the doctor knew that D was living with his father at that time, I place no weight on the fact that the doctor failed to make a report immediately.

6. Counsel for the father posed the hypothetical question as to why it was if the father was manipulating D in the way suggested, that E was not behaving in a similar manner.  I place little weight on the submission.  Firstly, it was not suggested the father was attempting to manipulate E. Secondly, it does not necessarily follow that because one boy is reacting one way and one boy is reacting another that the father is not attempting to manipulate them both in the same way.  There could be multiple reasons why the boys are reacting differently to behaviour of the father when in his care. 

7. Justice Stevenson has made strong, adverse findings against the father in relation to his personality. She most notably recorded that Prof G opined that he “is an extremely controlling and dominating character; this kind of profile is frequently observed in an abusive spouse”. Prof G thought the father could possibly be afflicted with paranoia and thought disorder and experience delusions. This assessment was disputed by a second doctor who found no psychiatric disorder or disordered thoughts, though agreed the father was “controlling” and “possibly a control freak”. Stevenson J concluded that the father exhibited symptoms of a personality disorder. She later said, with regards to the children, “my assessment is that the father is a controlling, dominating person who lacks real empathy with the children.  I fear that he will continue to pressurise them into aligning with him in the conflict between the parents.”

8. I was told by the Independent Children’s Lawyer that Prof G predicted that something of this nature might happen. At the time of the trial she opined that the boys were currently okay but they would not be if the attitude of the father continued.

9. Counsel for the father referred to the fact that the police had already attended the property and attempted to coax D out of the property.  Counsel for the father indicated that even if I made a recovery order, that the police may not choose to enforce that order (and of course there may be circumstances that arise where that turns out to be correct).  I do not however accept the submission by counsel for the father that because the police on one occasion have been unsuccessful, that there is no point in considering sending them again.  There is a significant difference between police going to a property and seeking to obtain voluntary behaviour and police going to a property with an order of this court to affect a result and use whatever reasonable force is necessary to achieve that result.

10. It is the father’s position that whilst he can influence D to go and see his mother for four hours a week,  D even reacts to that in a negative way and he does not want to have his relationship affected by forcing D to go.  Given what Justice Stevenson has said in her judgment, I, on an interim basis, am not prepared to accept the father’s evidence about those matters.  I do accept however that the father has it in his capacity to create circumstances in which D will be highly resistant to going and seeing his mother. 

11. In relation to D’s expressed views, there was no dispute that he is a mature boy and that he is currently saying what he is feeling. The question is whether those genuine thoughts have been manipulated by the father.

12. Counsel for the father submits that D is becoming more and more strained as time goes on and that there is a real risk that D will just run away and vote with his feet.  I accept that there is force in that submission. 

Use of former matrimonial home

1. As mentioned, the mother supported the Independent Children's Lawyer’s application in the alternative that the mother spends time with D in the former matrimonial home during the daytime only, if a recovery order was not granted.

2. In relation to the application for short term occupancy of the matrimonial home, the mother makes the point that the matrimonial home is still in joint names.  The mother moved to her mother’s residence (about four blocks away) in May 2009 and the father has continued to live in the matrimonial home since that time.  The parties had been together in the home for 13 years.  The parties have had no alteration in relation to their property (and have not yet had a case assessment conference).

3. The father opposed the application that he move out of the house for limited periods of time and allow the mother access for a number of reasons. The first is he was unable to secure what he asserted were volumes of legal paperwork which were at various locations throughout the house.  In oral evidence however the father conceded that he could, without difficulty, secure a lock on the main bedroom and the door on the study to the townhouse.  This will provide the father with two rooms that would be secure.

4. In oral evidence, the father seemed to indicate he had articles of women’s apparel in the home (I infer left by someone who had regularly frequented his home) and he did not want his privacy invaded by the mother viewing those items.  It subsequently turned out in further oral evidence that this is not the current situation (that is, that currently there are no items of women’s apparel in his home).  I was uncertain as to whether or not that had once been the case or whether or not the father anticipated that that would be the case in the future.

5. The most significant argument against the mother re-entering the home was raised by counsel for the father from the bar table.  Initially it was asserted by counsel for the father (and I infer upon instructions) that the mother on two occasions, June and August 2009, had gone to the property and removed items from the property.  In oral evidence, however, it became clear that those instructions given by the father did not accurately reflect the correct position. The father’s evidence in the witness box was that the mother at the date of separation had removed things like photo albums from the home. The mother had, on occasions, returned to the matrimonial home since the date of separation with the police for the purposes of recovering some of her personal effects. The father indicated in oral evidence that there were “no issues” about that.

1. Counsel for the father made a submission, the substance of which was that I should accept that the father would be so upset with an order that the mother re-enter the house against his will, that that will only exacerbate the tension that D feels and lead to a further adverse reaction to his mother. I acknowledge that is a risk given the attitude that I saw from the father in the witness box, and will have to weigh it against the other relevant factors.

2. In the alternative, the father asks that the mother not go to the upstairs part of the townhouse (where the bedrooms and the study are).  I do not think it is appropriate for me to restrain the mother from going to the boys’ bedrooms if that is appropriate at any particular point in time when she is in the house. But I shall order the father to secure the two rooms to which I have previously referred.

Other factors

1. The Independent Children's Lawyer referred to two particular passages in Prof G’s reports.  These indicated that D in particular did not like the week about arrangement and would have preferred to be able to stay in the one place. 

2. The parties live reasonably close together in the same vicinity (a map provided by the Independent Children's Lawyer indicates they are about four blocks apart).  The paternal grandparents reside in the same block as the location of the former matrimonial home. 

3. I note that the two boys currently, under the arrangements that have come to exist, are only spending four nights a fortnight with each other. Prof G said that they share a strong bond.

CONCLUSIONS

1. This case presents a difficult dilemma.  On the one hand it is accepted that D is expressing a clear view and on the other there have been significant findings made against the father in relation to his personality that would provide, at least on an interim basis, an explanation as to why D has changed what he is saying from the interviews of Prof G to his current expressed position.

2. There is no doubt that the relationship between D and the mother, while close in the past, seems currently not to be good.

3. It is obvious from the evidence put before me that D’s relationship with his mother changed very quickly, from the family report of May 2010 to D’s refusal to go home to the mother on 23 December 2010 and subsequent statements to his General Practitioner in January 2011.

4. It is also obvious from the evidence that the children have been placed in a very stressful position between their parents, and have been involved in the family law dispute. Similarly, Stevenson J has found that the father is controlling and dominating and has strong negative opinions about the mother’s parenting.

5. Whether D’s change of wishes are directly or indirectly a result of his father’s influence, or his own experience, I determine that it is important for an attempt to be made to have D reacquainted with his mother. I determine it is in his best interests to create opportunities to rebuild the meaningful relationship he once had with his mother, and which his sibling still enjoys.

6. Counsel for the father submits that this process will create tension and harm for D, and so the mother’s proposals are misguided.  I work from the assumption that D’s feelings are real, and reacquainting himself with the mother may be uncomfortable. However any harm caused by this will likely be less than the harm to his long term wellbeing should he lose his relationship with his mother altogether.

7. The harm to D of the changed situation will be minimised by adopting the orders of the Independent Children’s Lawyer – that D spend time with the mother in the comfort of his own home, in the presence of his brother, for a limited time each week. This will be far less stressful than having to deliver him to a place he does not wish to be.

PROPOSED ORDERS

1. I have determined not to finally deal with the application for a recovery order at this time.  I do so on the basis that:

   57.1.The Independent Children's Lawyer has proposed an arrangement which might see some way forward in improving the position with D spending some time with his mother;

   57.2.D has further counselling sessions (confidential) with Dr F to attend; and

   57.3.The appeal to the Full Court has been expedited.

2. In the event these arrangements break down, I will first consider whether or not it is in D’s best interests to accede to the mother’s request for the issue of one recovery order to attempt to see whether or not D can be relocated with his mother.

3. It may be that this litigation will continue and blossom, but it is in D’s best interests that the order proposed by the Independent Children's Lawyer be given some opportunity to have effect.

4. I say all this in the knowledge that Stevenson J’s orders are currently not being complied with by the father. He says that he cannot make his 13 year old go and see his mother except in the limited circumstances that the father proposes. The father would consequently assert that in any contravention application that might be put against him, he would have a reasonable excuse for not complying with Stevenson J’s orders. There is no need for me to interfere with Stevenson J’s orders pending the appeal. I do however accept the Independent Children's Lawyer’s application is an application that attempts a partial enforcement of Stevenson J’s orders.

5. I have adopted the orders of the Independent Children’s Lawyer for the reasons outlined above. 

6. Although I have ordered that the father not be within a 100 metres of the Suburb C property at the time that the mother arrives at the Suburb C property or leaves the Suburb C property, I have made it clear that the father is not prohibited from going to and staying within the home of his parents if his parent’s home is less than 100 metres from the matrimonial home.

7. I have provided the father with a clear weekend to do what he had to do in respect of securing a lock on the two rooms. The mother should not try to access those two rooms.

REQUEST BY THE FATHER TO ISSUE SUBPOENA TO THE SCHOOL COUNSELLOR

1. Counsel for the father wanted leave to be able to issue a subpoena to a school counsellor because he said the father should be entitled to gather as much evidence as he can to have the court aware of what D’s current views really were.  This leave was opposed because such a subpoena might destroy a confidential relationship that might be valuable to D in the future. 

2. It flows from what already has been said that D is in a very difficult position at the current time.  D needs all the assistance that he can obtain.  It is not a disputed fact before me that D is expressing the views that he is.  Why D is doing that is a matter of some considerable dispute which I would not be able to resolve in the context of this interim application.  For the present time I am bound by Justice Stevenson’s findings in relation to the father’s personality.  D has a confidential relationship with Dr F.  D at the current time probably thinks he has a confidential relationship with his school counsellor.  I do not want, at this time, to put into D’s mind the notion that things that he might privately say to a therapist can be used by either of his parents for the purposes of this litigation.  I accordingly at this time refuse leave to issue a subpoena to D’s school counsellor. 

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 22 July 2011.

Associate: 

Date:  22.7.2011