Kouros and Vasta

[2010] FamCA 356

FAMILY COURT OF AUSTRALIA

KOUROS & VASTA [2010] FamCA 356

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Mr Kouros

RESPONDENT: Ms Vasta

FILE NUMBER: MLC 13428 of 2007

DATE DELIVERED: 30 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 30 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ham

SOLICITOR FOR THE APPLICANT: Madisons Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Dunstan, Bowlan Dunstan & Associates

Orders

BY CONSENT BETWEEN THE FATHER AND THE ICL  IT IS ORDERED

1. That all previous orders shall be discharged.

2. That the father shall have sole parental responsibility for the child, J born … October 1999.

3. That the child shall live with the father.

4. That the mother shall have time with the child on four occasions each year being the last Saturday in the months of May, August, November and February between 10.00am and 1.00pm, such contact to be supervised by the Berry Street Child Contact Service.

5. That the parties shall do all things required to enrol in the Berry Street Child Contact Service within 28 days of these Orders.

6. That the Independent Children’s Lawyer shall be discharged, subject to paragraph 9 of these Orders.

7. That all existing applications shall be dismissed and the matter removed from the Court’s list of cases.

8. That the father’s solicitor shall arrange personal service of a sealed copy of these Orders on the mother as soon as practicable.

9. That within 21 days of service, the mother may apply to set aside these Orders and must fully explain her failure to attend at Court this day and her failure to attend Dr K as arranged by the ICL.

10. 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 Kouros & Vasta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13428 of 2007

MR KOUROS

Applicant

And

MS VASTA

Respondent

REASONS FOR JUDGMENT

1. J is aged 9½.  She has lived with her father since December 2007.  The objective evidence contained in the Family Report, which supports his version, is that she is thriving in the loving and secure setting that he is providing, and she is quite clear and mature in her views that she wants to continue living with him. 

2. Sadly, her mother struggles with a drug addiction and with the health issues and lifestyle issues that surround that addiction.  And, sadly, J has made her views very clear that she wants only a limited time with her mother.  She is uncomfortable about the way her mother has been behaving, and she is aware of what makes her feel secure and insecure. 

3. The mother has not attended court today.  She wrote to the Independent Children’s Lawyer yesterday saying that she was “very unwell.”  She attached a doctor’s certificate, of the variety that gives me absolutely nothing other than that for yesterday and today she was “unfit to work.” 

4. The mother’s failure to appear today needs to be seen in context.  Although she has previously appeared at court, albeit late, she has a track record of failing to turn up to various occasions and appointments.  There have been many occasions when she has not turned up to see J, and on those occasions she has claimed ill health.  I recall, in court last time, she explained some very long absences from her time with J on the basis that she was unwell at the time.  She failed to turn up or to keep an appointment with Dr K, arranged by the ICL, for a psychiatric report to be prepared for the court.  That report was going to be a very important part of the evidence.  She did not offer any reasonable excuse to the ICL as to why she did not keep the appointment. 

5. Today, Mr Ham for the father, is asking that I make final orders.  That approach is supported by the ICL.  The backdrop to that request is a very detailed and strongly worded Family Report, with a strong recommendation that J live with her father and see her mother four times a year at the Berry Street Contact Centre.  I am impressed by the detail of the report written by an experienced Family Report writer who analyses life from J’s perspective and arrives at that strongly worded recommendation on the basis of the need to protect her from her mother’s lifestyle and inconsistencies. 

6. I am satisfied that the Minutes of Proposed Orders are appropriate, providing for the father to have sole responsibility for the decisions in relation to J for her to live with him, and for the mother to see her on the four occasions each year at Berry Street.  I do propose, though, to add a provision that the mother have the right to apply to the Court within 21 days to have these orders set aside.  After that the father – and through him, J – deserve certainty. 

7. I am trying to balance on the one hand fairness to the mother, who might have some sort of illness based on that scant report, although it is hard to appreciate what has kept her from Court, and on the other hand, making sure that the father is not put to more undue expense and the heartache of waiting and wondering and not knowing the final outcome.   

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  30 March 2010