Maduch and Gryka

[2017] FamCA 1110

FAMILY COURT OF AUSTRALIA

MADUCH & GRYKA [2017] FamCA 1110

FAMILY LAW – ORDERS – Contravention – special needs children – request for independent children’s lawyer

APPLICANT: Mr Maduch

RESPONDENT: Ms Gryka

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2229 of 2015

DATE DELIVERED: 8 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Correa

SOLICITOR FOR THE RESPONDENT: Neri Legal Practitioners

Orders

IT IS ORDERED THAT:

1.The father’s Contravention Application filed 8 September 2017 be adjourned to 20 December 2017 at 10.00 am (“the adjourned date”) and the parties have liberty to apply for an administrative adjournment to either 21 or 22 December 2017, by consent, in the event that the Parent and Issues Assessment provided for herein has not been published by 19 December 2017.

2.The mother file and serve any affidavit material upon which she proposes to rely on the adjourned date by not later than 20 December 2017.

3.Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court and for that purpose:-

a)      The father is to attend at Level 5 of this Registry of the Court at 9.00 am on 4 December 2017;

b)      The mother attend at 11.00 am on 4 December 2017;

c)      The mother be responsible for bringing the children B born … 2004 and C born … 2005 (“the children”) to the Registry on 11 December 2017 at 11.00 am AND IT IS NOTED that Ms D has previously done a Parent and Children’s Issues Assessment but is unavailable to do this assessment;

d)      The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

e)      A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day;

f)      The Family Consultant may appoint further interviews for the parties and the children; and

g)      It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court prior to 19 December 2017.

4.The Family Consultant is required for cross-examination on the adjourned date at a time to be agreed.

5.That for the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

6.That pursuant to Section 68L(2) of the Family Law Act 1975 the children B born … 2004 and C born … 2005 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the children by the next return date AND IT IS NOTED that Mrs Maria Barbayannis was previously the independent children’s lawyer in this matter AND IT IS REQUESTED that she be appointed again if possible.

7.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

8.That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon and the independent children’s lawyer.

9.Without prejudice to the father’s right to claim further relief by way of make up or substitute time on the determination of the contravention application and without prejudice to the mother’s entitlement to argue the appropriateness of time between the father and the children, the father spend time with the children between now and the adjourned date each Sunday from 9.30 am to 5.30 pm and the point of collection and return shall be at the mother’s home.

10.For the avoidance of doubt, pending the adjourned date paragraph 4 of the Order made on 9 September 2016 be and is hereby suspended.

11.The father spend further face to face time with the children as may otherwise be agreed between the parties and confirmed in writing.

12.Without prejudice to any further orders made or to be made in these proceedings, between now and the adjourned date the father have telephone communication with the children each Wednesday for a reasonable time between the hours of 5.00 pm and 6.00 pm when the father is to place a call to the children’s mobile telephone service … and the mother is to ensure that children have the telephone, the telephone is turned on and within mobile telephone range, the telephone is sufficiently charged and that the children are permitted to speak privately to the father.

13.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

14.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maduch & Gryka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2229 of 2015

Mr Maduch

Applicant

And

Ms Gryka

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me in the judicial duty list.  It is the return date of the father’s application filed 8 September 2017 for the mother to be dealt with for contravention of parenting orders which provide for him to be able to see the children:  B, who is 13 years old, and C, who is currently aged 11.  It is alleged by the father in the contravention application that on 23 August 2017 and on 25 August 2017 the mother failed without reasonable excuse to permit the father to spend time with the children.  The father has not in fact, seen the children since late August 2017.

2. I have had discussion with the parties, being the father, who appears in person, and the solicitor for the wife, Ms Correa.  I note that the mother attends Court today.  This is a matter of some complexity.  I’ve had the benefit of reading a report by the treating psychologist of the children, Ms E, dated 11 September 2017.  I’ve marked that Exhibit “C1” and direct that it remain on the court file. 

3. I’ve also taken the opportunity to read the parent and children’s assessment completed by Ms D, family consultant, on 18 November 2015, which was part of the context in which the original final orders were made. There was no objection to the introduction of this evidence notwithstanding this contravention application.

4. Notably, both children appear to be on the spectrum and have been diagnosed with fragile X syndrome, which syndrome impacts upon their comprehension, their appreciation of non-verbal communication, and their social skills.

5. The parent and children’s assessment prepared by Ms D on 18 November 2015 is a long document. It has not been tested in cross-examination before me.  Therefore, I have regard to it as untested evidence.  However, there is a resonance between the father’s case, which is that the mother and the maternal grandmother have interfered with the children’s entitlement to see him being motivated to do so by money considerations and child support, rather than the best interests of the children.  At paragraph 32(viii) of Ms D’ report, she says:-

   viii.     no allegations about drug or alcohol use were raised in interview although [Mr Maduch] reported her had “…tried marijuana” when he was younger. Despite “…being on the street” since age 14 years [Mr Maduch] reports no criminal activities or convictions.

   ix.       [Ms Gryka] reported that she had concerns about the accommodation and environment [Mr Maduch] provided for the children and she further claimed he would leave the children alone in the care of his mother. The children do not substantiate any of these allegations and in their reports they suggest that the accommodation their mother provides is considerably less satisfactory that [sic] that provide by their father and furthermore it is she who leaves the children almost entirely in the care of a grandparent.

   x.        [Mr Maduch] explained that [Ms Gryka] was born in [Country F], and travelled to [Country G] to find work, where the parents met and he expressed concern that [Ms Gryka] may seek to leave Australia with the children. He expressed ambivalence about this issue but reported he had advice to request the children’s names be placed on the Airport Watch List.

   xi.       [Mr Maduch] reported he was profoundly distressed by the parental separation and following a mental health referral he attended [Dr H], psychiatrist in December 2015. [Mr Maduch] stated he has not been diagnosed with any disorder, he is not on medication and because he is no longer employed he has had to cease counselling. He explained his level of distress was exacerbated when he could not spend time with the children from April 2014- September 2014.

   xii.      [Mr Maduch] asserted between April 2015 and September 2015 [Ms Gryka] had withheld the children from spending time with him. He stated this arose because of a dispute about money and his subsequent engagement with Child Support and a determination of payments, then of $34 per month, now reduced to $15 monthly. [Ms Gryka] disputed this sequence of events simply asserting that suddenly and after spending each weekend with the children “…[Mr Maduch] did not contact me,” a view she has shared with the children but which [Mr Maduch] denies and the children report as unexpected and odd behaviour by their father. [Ms Gryka] acknowledged that at no stage did she contact [Mr Maduch] to see if he wished to spend time with the children.

   xiii.     The children’s health issues appear to be addressed by the parents to their best ability. The children are well cared for and well maintained by they are being impacted by the dispute between their parents, and maternal grandmother.

   xiv.     There are no risks to the children in the care of their father. The narrative of both parents and children suggest that [Ms Gryka] is controlling and abusive if parties do not comply with her agenda as there is disproportionate anxiety expressed by [Mr Maduch] and the children about  needing to meet [Ms Gryka’s] requests.

   xv.      It is evident that children have been exposed both to family violence at the hands of either parents and also to the persistent derogation of their father by both their mother and maternal grandmother, prior to and subsequent to the parental separation. Both [Ms Gryka] and the maternal grandmother appear unrestrained and self-serving in expressing their negative views of the father. There is some concern that were it not for the extremely positive close relationship the children have with their father that they would, at the hands of [Ms Gryka] have been alienated from their father.

6. Furthermore, at paragraph 62, Ms D includes in her evaluation a statement that:

   The risk issues to these children arise entirely from [Ms Gryka’s] and the maternal (grandmother’s) unrestrained denigration of the father to the children and [Ms Gryka’s] unrealistic expectations about the level of financial support that she can reasonably expect post-separation.

   Of course, it may be that Ms Gryka has heeded the advice.

7. The parties agree that the children should be represented by an independent children’s lawyer. In all of the circumstances, I am prepared to seek that occur, even for this contravention application, given that the children are children with special needs.  They are children which have previously expressed a view, it would appear, contrary to that of their mother’s view (as evidenced by the family assessment of Ms D, and it may be that following the determination of the contravention applications, the parenting orders should be reworked. The independent children’s lawyer should start preparing for those outcomes.

8. Ms D is no longer available to do a parent and issues assessment.  In one sense, that is unfortunate; in another sense, a fresh person can look at the situation and speak to the children.  I have provided in the order for the assessment to occur on 4 December 2017.  It should be concluded by 20 December 2017.  It’s important, in my view, that this matter be returned to Court prior to the Christmas break, and so I will accommodate the matter on the 20^th, 21^st or 22^nd.  At the moment it’s in on the 20^th, but if the parties can agree to the 21^st or the 22^nd, I will take it then.  I make orders as set out at the beginning of these reasons which I am satisfied are consistent with the children’s best interests. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 November 2017.

Associate: 

Date:  5 January 2018