Bouras and Bouras

[2008] FamCA 14

FAMILY COURT OF AUSTRALIA

BOURAS & BOURAS AND ANOR [2008] FamCA 14

FAMILY LAW – CHILDREN – Interim child and parenting orders - School

Family Law Act 1975 (Cth)

APPLICANT: MS C BOURAS

FIRST RESPONDENT: MR BOURAS

SECOND RESPONDENT: MS E BOURAS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 68447 of 1980

DATE DELIVERED: 15 JANUARY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 15 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS STEWART

SOLICITOR FOR THE APPLICANT: BERGER KORDOS

COUNSEL FOR THE FIRST RESPONDENT: IN PERSON

COUNSEL FOR THE SECOND RESPONDENT: IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS PANDELLI

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MARIA BARBAYANNIS & CO

ORDERS

1. THAT paragraph 2 of the Orders made by consent on 29 June 2007 be suspended.

2. THAT all prior Orders for the wife to spend time with or communicate with M be suspended in the context of the interim residence Order now pronounced.

3. THAT until further order the child M born … May 1993 live with the wife.

4. THAT the wife be permitted to forthwith enrol the child in F School.

5. THAT the child spend time with and communicate with the husband and the second respondent as may be agreed or in accordance with her wishes.

6. THAT each of the wife, the husband and the second respondent do all acts and things and facilitate the child attending upon Ms C, psychologist, for therapeutic counselling as to her welfare and in particular any issues concerning her relationship with each of her sisters and in her re-establishment at her new school.

7. THAT any appointments with Ms C be made at a date and time to permit the attendance of the second respondent and the child and specifically be directed towards restoring a good relationship between each of them.

8. THAT the husband and wife be each responsible, subject to any Medicare refund, to meet the child’s psychological costs and expenses.

9. THAT all extant interim and final applications be otherwise adjourned to the Judicial Duty List on 18 February 2008 at 10.00 a.m.

10. THAT the husband make, file and serve any response to the application in a case filed by the wife on 12 December 2007 and file any affidavits in support thereof on or before Wednesday 6 February 2008.

11. THAT the wife make, file and serve an affidavit as to the child’s occupancy of her home and living with her and attending at her school current as at Tuesday 15 February 2008.

12. THAT the husband and wife each make, file and serve an updated Form 13 financial statement inclusive of ownership of all of their property assets, such document and annexures thereto including the last three (3) years tax returns to be filed and served on or before Wednesday 6 February 2008.

13. THAT the Independent Children’s Lawyer contact F School on or about Tuesday 12 February 2008 and obtain from the Principal, or proper officer of the school, a report as to the child’s attendance and progress at the school.

14. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

15. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS NOTED:

A.THAT the second respondent forthwith make available to the child the mobile phone, charger and all accessories and the child provide to her mother and her mother return to the second respondent the laptop computer, issued through L College and all of its accessories.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Bouras & Bouras

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 68447 of 1980

MS C BOURAS

Applicant

And

MR BOURAS

First Respondent

And

MS E BOURAS
Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Bouras is before me in the Tuesday Interim Judicial Long List of Cases, having been referred there pursuant to paragraph 1 of the orders of 3 December 2007 made by Carter J.  The order on that occasion stated that:

   The question of future or different arrangements to be made for [the child, M] to spend time with her mother be adjourned to 15 January 2008.

2. Otherwise on that day orders were made for the child to spend time with her mother on weekends prior to Christmas in December and on Christmas Day, with a changeover to take place at the local McDonald's Restaurant. 

3. In the matter before me today Ms Stewart of counsel appears for the applicant wife.  The husband is the first respondent and he appears in person.  The second respondent is the eldest sister of the child, that is E Bouras (“[E]”).  Ms Pandeli, solicitor, appears as the Independent Children's Lawyer.

4. This matter has a very long and traumatic history in this court.  Carter J is the appointed judge administrator of the matter and she has predominantly heard the case on its many appearances in court and has made numerous orders and given reasons for judgments on occasions, which I have read. 

5. The substantive order was that made 29 June 2007.  I was advised that the defended proceedings had occupied four days and ultimately resolved and these orders were made during that trial.

6. The effect of those orders was to discharge all previous parenting orders in respect of the child, M, born in May 1993, now 14 and a half years of age.  Those orders provided for shared parental responsibility to be shared between the husband, the wife and E, but with the child to live with E and spend time and communicate with her mother on a four-week school cycle and otherwise on holidays. 

7. I have read those orders and am aware of the contents thereof in the circumstances of the many events that have since transpired and orders that have been made in this court.  I have also read the further reasons for judgment of 7 December 2007 by Carter J and the orders made that day, including the required contribution of $3800 to be made by the wife towards the costs of E (the second respondent). 

8. There have been a number of dramatic events which have occurred over the 2007/2008 Christmas-New Year period. 

9. The history following the previous final orders was that the child went to live in W with her elder sister and then to attend L College.  I have read the school reports, as the second respondent has presented to the court this day in respect of semester 2 at the W campus. 

10. The significant urgent interim issue this day on child-related matters and parenting orders is that the child saw fit to leave the W home of her sister on New Year's Eve/New Year's Day in circumstances that are identified in the additional affidavit material now filed by leave of the court.  Since then she has returned to and resided in the home of her mother in R.   

11. I have today read three primary affidavits that have been filed in this calendar year and that update and identify the significant issues and concerns before the court.  The first of those affidavits was filed 8 January 2008 by Ms G, who was a psychologist appointed to supervise periods of time between the wife and the child.  I have read her report of the details of contact supervision between September and November of last year, though all aspects of that report predate the New Year's Eve events. 

12. I have next read the substantial affidavit of E filed 11 January 2008 and all of the annexures thereto.  The 27 paragraphs of that affidavit do highlight the period throughout December and particularly at and around the New Year with the child and her issues and concerns with the W home and her departure therefrom and the events immediately thereafter.  I do not propose to recite particular paragraphs or sentences from that affidavit which I have carefully read and reread.  I well understand the direction of the affidavit is that the wife has made demands or exerted significant an unwarranted pressures on the child to return home. 

13. The second respondent observes that, "[The child] demonstrates an unusual enmeshed relationship with her mother".  I make no finding on the accuracy of that opinion.  Likewise in that affidavit it is deposed that the more time that the child spends with her mother the more volatile and acrimonious she becomes.  The concern is expressed about what chances the child has in life and a new beginning if she remains under the unwarranted and overzealous protection of her mother.  Having said that, however, the affidavit concludes in paragraph 27 with the statement that the health of the deponent (E) and that other family members is at risk should the child’s behaviour continue the way it has following time with her mother and this deponent concludes by saying that she cannot put her family and friends at risk of being involved with false allegations and indeed, by inference, with all of the behaviour and issues of and concerning the child and the way they have impacted on herself and her husband. 

14. The final affidavit is that filed by leave today by the wife.  Likewise, I have read that affidavit and the annexures thereto, including what was said to be the Christmas card prepared by the child. 

15. As one would expect in a significantly dysfunctional family, the affidavit is grossly at odds with that of the daughter.  I pause first to reflect on the tragedy of this family where two seemingly intelligent, well brought up elder female children have no contact whatsoever with the mother.  The youngest child, M, has no contact of any reasonable kind with her father and now indicates to the Independent Children's Lawyer that she wants no contact with her loving sisters.  The contact between husband and wife is extreme and neither have any respect of or understanding for the other.  That paints simply a tragic picture. 

16. Returning to the affidavit of the wife, it deposes circumstances in which the child came to her and some part of her subsequent contact and endeavours to inform the police, the independent children's lawyer and others.  Realistically there is no prospect of family cooperation or family conference.  I cannot and will not make orders requiring the family to more actively be involved with respect to one another because that would be futile. 

17. To pause and go back to June of 2007 and thereafter when the child was enrolled at L College I accept that the second respondent took financial responsibility for that decision and it was costly and undertaken to be in the best interests of the child.  The current position is that the first semester (that is a half year) fees have been paid by E for the child for this year.  That is a cost in excess of $10,000. 

18. The issue of immediate schooling as the child commences in year 9 this year is a matter of urgency and real importance.  The second respondent wishes to keep open L College as an option and ideally, though in my opinion significantly unrealistically, would have the child travel from R to W campus for the first two or three weeks of this year.  It may be that L College will reserve her position, though that might be at the financial cost of the second respondent or otherwise the parties generally. 

19. On reflection I propose to make no order surrendering the child’s position at L College.  My overview is that the husband and wife should be equally responsible for the school fees at L College and not the second respondent and to the extent that fees this year have been paid, they should equally refund that amount that could be lost by way of a withholding of school fees by L College. 

20. Ultimately, I will not make that order today, but that would be my very clear of a just and equitable outcome.  If that need arises to claim those moneys, it would be necessary for the second respondent to formally seek that sum by way of a court order, though I trust it would not involve her intervening in the property proceedings between her parents and there would be some constructive legal advice given on this issue.  For myself, I would presently have little hesitation with the orders that I would make. 

21. I record the disclosure by the second respondent that the all-up cost for her and her family in maintaining, educating and having the child live with her was said to be $100,000 or thereabouts.  That may or may not be a correct figure, I make no further inquiry, nor finding upon same.  Ultimately, however, the primary obligation for the child’s upbringing - at least until she turns 18 years of age - should rest with her mother and father.  What I have read and without endeavouring to be unkind, it does seem that the father has done precious little for his daughter, though I understand he is estranged from her.  Again, I do not pursue that matter because of the time commitments and the limited hearing by way of submissions with no oral evidence received. 

22. As to schools and returning to the child, the Independent Children's Lawyer has expressed a very strong view that the child’s wish is to return to her old school, F School, which is located in R.  It is said that she had many friends at that school.  I requested inquiries to be made and counsel for the wife has now indicated to me that a place is available and the child can commence in early February in year 9 at that school.  I do express a level of amazement that those inquiries were not made earlier and that there was not an open invitation in writing from the school welcoming the child.  I am told the school fees are there approximately $4,500 per annum, approximately 28 per cent of the fees levied by L College.  Again, I make no comment upon school fees charged and the measure and quality of education.  If relevant, they are matters for another day.

23. The start reality is that the child has voted with her feet.  She has left the home of her sister to live with her mother.  The Independent Children's Lawyer is correct, indeed, somewhat blunt, in putting the wishes of the child and they are to remain in her mother's home, to live in R and to attend the local school from whence she was removed.

24. Ms Pandelli has no doubt accurately, but also quite graphically, portrayed a child in distress.  The emotion, upset, tears and dilemma facing the child are apparent.  During submissions and in my constant questioning of practitioners and parties I made reference to the fact that this family has "seeming imploded".  I do not mean that as a criticism, I mean to record the events of the family and how all members of the family need to put the past aside, be stronger and act in the best interests of the child who may well be an upset, confused, emotionally distressed young girl.  I will order ongoing counselling with Ms C. 

25. I accept that the second respondent does want to restore her relationship with the child and does want to be involved in counselling.  That is a remarkably positive approach.  It is necessary and probably both of the child’s sisters should be involved in counselling.  The tragedy of all of the turmoil of this family and notwithstanding the separation and distance between parents is that that conflict is now consuming the children of their marriage. 

26. My responsibility is to make orders that are in the best interests of the child.  Those orders will be made on an interim basis.  I will suspend previous orders of the court. 

27. The requirement of the court is to consider the primary and additional considerations and factors as are identified in section 60CC of the Act in determining what is in the best interests of the child.  I have careful and specific regard to those primary factors and to the many relevant additional factors.  My priority is the physical and emotional wellbeing of the child. 

28. I presently harbour many concerns about the attitude and understanding of the mother to the child and how the mother can and will be a positive influence upon her youngest daughter.  With that qualification, however, the views of the child are stark.  She not only has voted with her feet, she has backed up by careful discussion with the Independent Children's Lawyer where she sees her future.  I was impressed by the second respondent's and Independent Children’s Lawyer’s description of the child, who seemingly is not a timid, meek child but someone who is of a reasonable level of maturity. 

29. I do not find on an interim basis and without evidence that there is any physical danger to the child.  Both households have no doubt tried their best.  I have a preliminary view that there simply have been too many court hearings, too much reliance on court, perhaps too many psychologists involved, but the issues continue and clearly the child needs help, both in terms of settling in and making decisions for herself. 

30. The reality is that there is little flexibility open for the court.  The child has left her sister's home and will not return there.  The Independent Children's Lawyer has a strong recommendation in that regard.  In any event, the conflict and turmoil in the second respondent's home is such that it would only be a recipe for further issues to force the child against her wishes to return.  I have been given no other option.  The father's home is not available and the child would not go there.  The other sister is soon to leave R. 

31. In those circumstances, and with some little concern, the reality is that the child now will live with her mother in the short term and pending this matter returning to court, in the middle of February.  I specifically determine that the middle of February is appropriate, first, because Carter J, as the list judge manager is sitting, but also there does need to be an urgent and immediate evaluation of the child at her school, F School, of how she has settled in, of her acceptance by other pupils, of her work and output and, above all else, her relationship with her mother and her home life and its circumstances. 

32. If the door to L College can be kept ajar, so that the possibility remains of the child returning, that is appropriate, though in my opinion an unlikely outcome.  As I said, there needs to be ongoing counselling subject to the emotional circumstances and best interests of the child and indeed, probably of all family members.  One of the issues that has caused me some little concern is that the current shared parental responsibility order for the child is shared between the husband and the wife and the second respondent.  Long term that may not be appropriate, but currently I do not propose to interfere with that order.

33. I will suspend the order whereby the child lives with her sister, that is, paragraph 2 of the consent orders of 29 June 2007 and on an interim basis and until the adjourned hearing date I will provide for the child to live with her mother. 

34. There has been discussion and various submissions as to issues of transport, of collecting and taking the child to and from the psychologist and otherwise of making available periods of time for the child to be with one or both of her sisters.  I propose generally to leave that to the parties to sort out or in default responsibility will fall to the mother.  Certainly any appointments with Ms C need to be made at a convenient time to the adults.  In terms of transporting the child, it is probably better for the mother to be involved, though I acknowledge that runs the risk of undue influence with the child in the car with her mother going to and from appointments.  I think that is a better outcome than the elder sister collecting the child from her new school.  That is fraught with danger and the possibility of cancellation of appointments. 

35. Time marches on and it is after 4 o'clock and these are ex tempore reasons, given without leaving the bench, and in the context of reading the various affidavits, judgments and orders and the submissions that I have received.  I propose therefore to pronounce children and parenting orders now and other specific issue orders to reflect that which I have touched upon.  I will ask the Independent Children's Lawyer to convey these orders to the child by telephone forthwith.  I will have these transcribed, placed on the file and made available to all parties.    

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 21 January 2008