Fothering and Vintic

[2009] FamCA 162

FAMILY COURT OF AUSTRALIA

FOTHERING & VINTIC [2009] FamCA 162

FAMILY LAW – PRACTICE AND PROCEDURE – Less adversarial trial – Long history of litigation – Need for some expert report before proceeding further

Family Law Act 1975 (Cth)

APPLICANT: Mr Fothering

RESPONDENT: Ms Vintic

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1425 of 1999

DATE DELIVERED: 10 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 10 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TRAPSKI

SOLICITOR FOR THE APPLICANT: HARTLEYS LAWYERS

COUNSEL FOR THE RESPONDENT: MR CASH

SOLICITOR FOR THE RESPONDENT: CASH & STAVROULAKIS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T J MULVANY & CO

Orders

1. That all proceedings be taken out of the list of pending cases to be reinstated upon a request by any party including the Independent Children’s Lawyer for the purposes of any future hearing.

2. That the parties and the child E attend upon and at the direction of a family consultant to be appointed by the Director of Child Services of the Brisbane Registry of the Court for the purposes of the preparation of a report to address:

   (a)    the views of E about what, if any, relationship she is to have with her father and if so, how that would be commenced; and

   (b)    the environment and general living circumstances of both parties but particularly those of the mother and her husband Mr Vintic.

3. That the family consultant appointed be at liberty to read all documents on the court file including specifically the report of Mr N dated 3 March 2009.

4. That the registrar make the file available to the Brisbane Registry as soon as practicable.

5. That Registrar Mestrovic be formally appointed as the docketed registrar for all purposes of contact by the parties.

6. That all parties have liberty to apply to the docketed registrar on short notice for the matter to be relisted for final hearing.

7. That no party file any further application or affidavit without the leave first obtained of the docketed registrar.

8. That my reasons for these orders be prepared as soon as practicable and be placed on the file and provided to all parties.

9. That is it is requested that Victoria Legal Aid do all things possible to continue to fund the appointment of the present Independent Children’s Lawyer.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1425  of 1999

MR FOTHERING

Applicant

And

MS VINTIC

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is the first day of a less adversarial trial concerning an eleven year old girl E.

2. The proceedings between the parties began when she was two years old and the parties have been in and out of the court system at various times over the years from 1999 until now.

3. There has been something like thirty nine hearings of one type or another.

4. Despite all of that, the father has not seen E now for three years.

5. An issues’ assessment report prepared in anticipation of this trial indicated that a full family report was necessary. The family consultant who is Melbourne-based was unable to spend any time with E because she is in Brisbane with her mother.

6. The parties’ problems are compounded by the fact that the mother has remarried and her husband is currently on remand in Queensland for drug-related matters. I was told that he is about to pursue bail. Just how long he has been in prison is unclear.

7. The mother is also awaiting a trial on a charge of attempting to pervert the course of justice or in her words, an allegation that she tried to bribe a witness of the Crown. Mr Cash said on her behalf that she is pleading not guilty to the charge and even if found guilty, would not be likely to face a prison sentence. The mother apparently has a prior history of criminal offences.

8. The father too has spent considerable time in prison for drug-related offences. He asserted to the Family Consultant that he had been “clean” for some years now but the solicitor for the mother asserted that there is a drug screening document showing signs of cannabinoids last year along with something like Valium. All of that will no doubt need to be tested.

9. I have indicated that it is time to put a stop to all of this for the sake of E. Importantly, if the mother is imprisoned, there will be the difficult question of what happens to the child in circumstances where the mother says that the child is refusing to have any relationship with her father.

10. The father’s position at some stage was that he wanted the child to live with him and he pursued that issue on the basis of the mother’s prospects of being unable to properly care for the child. That now seems to have become less of an issue as time has gone by and the child’s resistance has grown stronger. The father however says that the mother has deliberately alienated the child from him and the evidence about that needs to be tested.

11. Throughout all of this process, Mr Mulvany has continued to act as Independent Children’s Lawyer. He told me that there were a number of hearings at which he has acted pro bono. He agreed with me in discussion that this ongoing proceeding has to stop once and for all.

12. In respect of the position of Mr Mulvany, there would seem to be a critical need for his continued involvement. There is no-one on either side who appears to have any objectivity about the child and in troubled times when the mother is facing serious criminal charges, it is essential that there be someone remaining focussed on the child’s interests.

13. I have indicated that I would make a request for Victoria Legal Aid to continue funding this matter. I am very conscious of the shortage of funding and this case has had substantial use of taxpayers’ resources already. However, I propose to make one last attempt to bring the matter to a head with finality.  Accordingly, I have urged Victoria Legal Aid to continue to fund Mr Mulvany so that I can have the benefit of some person other than the Court monitoring the progress of the case and advocating whether there ought to be a trial or not. Mr Mulvany must be properly funded for that purpose as there is little prospect of the parties doing so. I intend that these reasons be made available to the Director of Legal Aid. It is rare that I have felt the need to have someone in a case as strongly as in this one. This is difficult and needs attention.

14. I propose to assist the future conduct of the matter by ordering a family report but not a comprehensive one. There may be no need for that at this stage. What is desperately needed is some evidence about what E’s views are, her level of maturity and whether her position is so entrenched against her father that he may have to cease pursuing any time with her at least for the foreseeable future until she can “vote with her feet”. It is also imperative that the Court have some understanding of what is happening in the mother’s household with the impending criminal charges and the prospect of release on bail of her husband. Just what role he plays in the child’s life is not at all known to me.

15. Mr Mulvany is also hampered by the absence of the child from Victoria and as such, to properly advocate for her interests, he needs to have the views of an expert on all of these matters.

16. I am content for the Family Consultant to explore with both parties whether and if so how, the future relationship with E could be fostered. The mother said that it could be through a supervised agency such as a contact centre on the Gold Coast if E sees someone from the local welfare service in Queensland first but until such time as E’s position is clear and what is in her best interests, any such contemplation would be pointless.

17. In the circumstances, I propose to take the matter out of the lists and then have it put back only when one of the parties needs judicial intervention. It will come back to me if that is the case. I intend to order that no party seek to file an application until they have seen the docketed registrar in the hope that the parties will realise just how limited the prospect of the court fixing the problem will be.

18. I will ask that these reasons be also sent to the docketed registrar.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 March 2009