Mertiglio and Vinkov

[2008] FamCA 1251

FAMILY COURT OF AUSTRALIA

MERTIGLIO & VINKOV [2008] FamCA 1251

FAMILY LAW – CHILDREN – spends time with – lives with – communicate with

Family Law Act 1975 (Cth)

APPLICANT: Ms Mertiglio

RESPONDENT: Mr Vinkov

INDEPENDENT CHILDREN’S LAWYER: Ms Adams, solicitor

FILE NUMBER: SYC 5345 of 2008

DATE DELIVERED: 19 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 19 December 2008

REPRESENTATION

APPLICANT MOTHER: IN PERSON

RESPONDENT FATHER:  IN PERSON

INDEPENDENT CHILDREN’S LAWYER: Hammish Cumming Family Lawyers

Orders

1. Unless the parties agree to the contrary in writing the existing orders be varied to provide for the following:

   (a)That the child … born … November 1999 live with the mother:

   (i)from 10:00 am on Christmas Day until 4:00 pm on Boxing Day;

   (ii)For the second half of the April, July and October school holidays and that changeover take place at 11:00 am on the middle Saturday of those holidays.

   (iii)In relation to the upcoming Christmas school holidays from 4:00 pm 11 January 2009 until 4:00 pm on 23 January 2009;

   (iv)During school term, alternate weekends from 3:00 pm or after school on Friday until 9:00 am or the commencement of school on Monday or in the event that Monday is a Public Holiday until 9:00 am on Tuesday and the first occasion in each school term is to be the first Friday of that school term.

   (b)Handover unless the parties agree to the contrary is to be at McDonalds at L.

   (c)That during the periods when the child is with the mother she facilitate reasonable telephone communication between the child and the father.

   (d)At all other times unless the parties agree to the contrary the child is to live with the father.

2. Leave to the Independent Children's Lawyer and to the parties to restore the matter to the list on giving 7 days notice to the Court and to the other party and Independent Children's Lawyer.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5345 of 2008

MS MERTIGLIO

Applicant

And

MR VINKOV

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child.  He was born in November 1999 and is nine years of age.  He attends N School. The father and mother are 36 and 30 years of age respectively. They married in February of 1999, separated in April of 2002 and they were divorced in 2003.

2. The history is not entirely agreed between the parties, but the father's view is that to some extent the parties had equal care of the child until they separated.  He says that the mother was physically and verbally abusive during the marriage.  That is literally what he says. He gives no evidence of it, makes no reference to any occasion, no reference to any incident. He makes that bare assertion in several places but it is unhelpful.

3. He says that from separation in April 2002, for a period the parties had the child week about.  He says later that settled down to four days with him, 10 days with the mother.  Final orders were made on 12 October 2004 at the Family Court at Parramatta, in terms agreed between the parties, discharging orders of October 2002 and providing that the child live with the father from 4 pm Saturday until 4 pm on Wednesday in alternate weeks and in the intervening weeks, overnight Wednesday.  That would apply until the child started school.  Once the child started school, on the first weekend of each school term and each alternate weekend thereafter, the child would be with him from 3 pm Friday until 9 am Monday, extending to Tuesday if Monday was a holiday and in the intervening week from Wednesday overnight to Thursday, and for half the school holidays.  Provision was made for special days. At all other times the child was to live with the mother.

4. The parties came back to Court on 31 January 2005 and changes were made to the orders in relation to telephone communication and decisions about schooling.  The father's telephone time was to be each Tuesday 7 pm to 8 pm, alternate Sundays and so on. Otherwise the father's application filed on Christmas Eve 2004 was dismissed by the Court.

5. The father says that there was an occasion when the mother had hidden the phone that had been provided for the child and the child reported crying in relation to the mother's care.  On 25 July 2008 the mother travelled to Europe and the USA .  She was due to return on 10 September.  The parties had agreed between them that the child would stay with the father during that time.  When the mother was away the father says the child said to him, that he was required by the mother to eat beans until he vomited. The child complained that his mother made him go to bed early and he found himself lying awake in bed and could not get himself to sleep. He was blamed for a car remote getting wet and ‘they’, I think that was a reference to the mother and her former partner, hit him.

6. On 14 August 2008 in the presence of a teacher the child disclosed that he had been beaten and the teacher made a notification.  The matter was referred to the police. The police referred the matter to the Department of Community Services. The Department took no action.  On 9 September the child was interviewed by Police and the father was told that there was not enough evidence, that nothing could be done at that stage and he was told to keep a note of any further incidents.  The father says on 9 September the child said to him that his mother had said that she would kill him. The boy told his father that he did not want to go back to the mother.

7. The child refused to return to the mother's care on her return from overseas.  The father referred the issue to the school counsellor. The child was with the mother on 21 September under an arrangement made between the parties and the child rang the father and said, "Come and get me". In fact the maternal grandmother delivered the child to the father. 

8. These proceedings were then commenced. When the matter was before the Court on a previous occasion, she told the court that she was intending to work in the United States in New York and rather than a return to the existing order she wanted some orders for the child to spend some time with her - half the school holidays in Australia and then she wanted orders to deal with the situation when she finally returns to Australia.

9. It was not entirely clear on any of the documents, but today the mother says that her proposal to work in America was just for three or six months. She has now changed her mind about that.

10. These proceedings generated the appointment of an Independent Child Lawyer, the parties have seen a Family Consultant and an issues assessment has been prepared for the assistance of the parties and the Court by consultant Ms B.

11. As to the competing applications today, the father seeks orders in terms of a minute. He wants the child to take up a place at the school called S School for 2009 and he says that the child has been enrolled in that school and he refers to the fact that the mother had agreed that he would have day to day responsibility going back to her proposals to travel out of the country.  He wants the Court to note that the child spends only one to two hours each weekend with the mother at the child's request and refuses to stay longer. He says that time is supervised and that the mother does not telephone the child when the child is with him. He says he wants the Court to note that the child, not the father, claims that there has been abuse of the child by the mother.

12. He wants me to note that the Family Report writer makes no comment as to whether the allegations are true or not.  He notes that the child says that he does not want to live with the mother.  He notes that the mother suggests that the child is lying to the teacher, police, DOCS, family counsellor and the Independent Child Lawyer.   He notes that the mother has changed her mind about relocating and I understand his point to be that the mother might change her mind again about that. He wants a contravention application that he has filed restored to the list.  He wants the mother to provide certain people as witnesses for the proceedings. He wants to reaffirm the current orders.  I think he means the interim orders. But noting that the child is not required to stay longer than two hours, that the times are supervised.  He wants me to note that last weekend the child did not stay at all and said that he feared speaking with his mother.  He wants the Court to determine whether the mother has re-established a relationship with her partner and he wants an order made that the mother not be permitted to leave Sydney with the child. 

13. The mother seeks orders for the child to be with her from 10 am Christmas Day overnight 10 am until Boxing Day.  She wants an order that the child spend half the school holidays with her from 11 January. She wants hand over at McDonald's at L. When school commences she would like the child with her alternate weekends from 3 pm Friday till 9 am Monday, onto Tuesday if it is a holiday day. She would like the second half of the other school holidays with her and that her time be unsupervised in accordance with the recommendations of the Family Report and the Independent Child Lawyer.  She seeks that the child not be allowed to call his father to have him come and pick him up during the time with his mother. The Independent Child Lawyer supports the mother's proposals.

14. As Ms Adams said for the boy, this is a really hard case. The proposals of the parties have some real problems.  The father's proposal is that a child who does not want to spend time with his mother be required to do it for one to two hours on a weekend, that it be supervised, that the mother be restrained in relation to what she does and where she is. That does not sound like much fun. The mother seeks that we put a blind eye to the telescope about all of the concerns that have arisen, that we just ignore the boy's concerns. The problems are highlighted by the order the mother seeks that the child not be allowed to call his father to come and pick him up during his time with the mother.

15. I am not sure how such an order would be enforced. It might just be badly worded and what she really means is that she not be required to help the boy ring his father. That is a feature of the whole case. It is as if the parents cannot control this boy and they are trying to have the representative of the Australian community, the Court, bully him into a situation where he will spend time in a certain way.

16. I am to make orders in the best interests of a child.  I am to do that by reference to s 60CC.  Where parties are likely to have or are going to have equal shared parental responsibility I am to consider with a view to ordering, equal time.  The presumptions about the decision making can be rebutted in circumstances where there are allegations of violence, and there are allegations of violence here.  Neither of the parties is asking for an order that the child spend equal time between the parties.  These are still civil proceedings so I would have thought it would be unusual for the Court to impose something when neither of the parties wants it.

17. The Court is to consider with a view to ordering substantial and significant time, if it does not order equal time.  Of the two parties, only the mother is seeking substantial and significant time and then only barely.  She does not seek any real involvement during the school week, so even her proposal is probably not quite there.  Section 60CC sets out primary and additional considerations.  The primary considerations are the benefit of a child having a meaningful relationship with both parents.  Only the mother's proposal, the proposal made by the Independent Child Lawyer addresses that requirement.

18. I am to consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  That is the father's case, although he says that is not his case, it is the boy's case.  It is what his son is telling him.  And that makes sense because even though the father was concerned about behaviours he has not described in his affidavit in the 2004 orders, he asked the Court to make orders that would have the child with the mother most of the time, unsupervised.

19. He before the Court in 2005 and whatever he said to the Court then, no restriction was placed on the mother, her time with the child was not limited and no additional restraints were placed on the mother in relation to violence or any aspect of her behaviour. There was no appeal against the 2004 or the 2005 orders. I take that to mean that the father was comfortable with the arrangement. In fact his concerns first arise when the child says some things to him when the mother left the country earlier this year. The police do not accept the allegations as something that they could take action on. 

20. The Department of Community Services does not accept the allegations that it can take action on. The implication from Family Consultant Ms B’s report is that there are aspects of the child's reporting that are not consistent with the child's age. She contrasts the child's presentation with the likelihood of physical abuse.  She says, for example, even in situations where children have suffered abuse by a parent they generally experience a range of mixed feelings about that parent, still generally want that parent's love and affection.  And that is not the presentation of this child.

21. Ms B acknowledges that, although the mother comes across as a more empathetic and sensitive person than the father, that does not mean that there have not been episodes of physical abuse of the child.  She says that the mother denies it.  She says that it is beyond the scope of her assessment to make a decision about it.  She reports that as the most heartfelt and spontaneous of all the things the child said was him saying, "All kids want their parents to like each other".  She talks about the father.  He would not cooperate with the process to the extent that he would not watch the video that all parents see before the session starts and when issues came up he continually referred to the boy's complaints rather than his concerns.

22. It was fairly clear from what the boy said to Ms B that there had been a representation made to the boy about the purpose of the interview.  He understood that he was seeing Ms B because "Court's for me to be separated from mum".  The child could not describe anything he was scared of.  He was a bit worried about the Court and about parental conflict.  Ms B said that his presentation and play suggested that he was more anxious than he was able to articulate.  He said that his mother, "Wants to see me, but I don't like her".  He said he did not really want to stay over at his maternal grandparents because he was not happy there.  He could not say why.  Then he quickly went on to say that his mother, "Slaps me, kicks me, hits me.  I don't like it.  She forces me to eat beans till I vomit".

23. He described his maternal grandparents, and this is a concept that seems a bit odd, as ‘fakes’, and he said this because, "They don't look like me, we've got nothing in common".  That seems to be a comment well outside the scope of a nine year old child.  His three wishes were, "To be with my dad, to be with my dad, to be with my dad and never see mum again".  The father not attend his initial appointment; would not watch the DVD and when he was asked questions about what he thought best for the child and other issues he repeated replied, "Ask [the child]". 

24. Ms B says:

    He maintains that the situation has little to do with him, but he did not seem to comprehend that relying on [the child] to make statements and express views about all of the relevant issues is inappropriate and/or places [the child] in a very difficult position.

25. Ms B asked the father how the child may have been feeling having to attend and be interviewed and the father said, "Ask him".  When asked if he thought the child may need to change schools, the father said, "Ask him".  The father said that he was unaware of any other aspect of the child's relationship with his mother other than that he has been abused by her.  The father did not appear to accept the possibility that even if children have been subjected to abuse they generally have mixed and confused emotions about their parent, may experience feelings such as guilt and abandonment associated with the process and processes of the situations that follow.

26. The mother conceded that the child has been wanting to live with the father for an enduring period of time.  She said that she believed this was because the father sought the child’s loyalty and affection, indulged him, set few limits, while she was the main disciplinarian.  She denies that the child was exposed to conflicts and/or difficulties associated with her former partner, although given that they separated recently it is likely that the child was exposed to some relationship conflicts.  The mother described the child as expressing reluctance to visit her and a reluctance to communicate with her at the beginning of visits.  Many parents have difficulty being honest about such situations and it is humiliating for them to experience and describe their child responding to them in this manner and they feel that it will be detrimental to them in legal proceedings.  The way she described this situation and the way she responded to it, however, communicated a sensitivity and empathy with the child.

27. It is clear from the report that Ms B was dealing with the situation before the mother had decided she was not going to travel overseas again.  She says:

    [The child] is saying that he does not want to see his mother and his father states that what should happen should be determined by [the child’s] desires.  [The child] is in a very difficult situation.  He went to fairly extreme lengths in order to convey his loyalty to his father.  Boys this age do not generally present as needing to wrap themselves in their parent's arms and express such reluctance to separate from them despite apprehension about being interviewed.  Parents of children [this child’s] age generally make decisions on their behalf and are expected to have views about their child's best interests.  [The father] maintaining that resolving decisions about [the child] was entirely up to [the child] and nothing to do with him.  He maintains that [the child] should decide most issues, but said that he didn't know how [the child] felt about being interviewed about them.  [The child] did, however, show obvious signs of distress and anxiety about talking about family matters.  He listed abusive things that allegedly happened in a rote, rehearsed manner, devoid of much emotional expression.  This is not to say that they didn't occur, but [the child] did not wish to be questioned further about them and seem to be preoccupied with primarily supporting his father.  He was nervous about expressing anything that might be perceived as supportive of his mother.  Assessing [the child’s] relationships was also difficult because it occurred in a context where [the father’s] contempt for [the mother] is evident to him thus altering how he presented the information. 

28. As to the future Ms B said it did not seem to be in the child’s interest to undergo more interviews despite the allegations of abuse. 

    It is in [the child’s] interest to experience having his mother's affections.  The mother seems willing and able to build an affectionate relationship with the child.  It is difficult to establish how aware [the father] is about how his negative attitudes toward the mother make it difficult for [the child] to have a full range of expression about his views and feelings about her.  His beliefs and attitudes are also adding significantly to the difficulties [the child] has with adjusting to visits with his mother.  For [the child] his parents remain the most important figures in his life and it is in his interests to share positive experiences with both of them and for the parents to accommodate each other's differences and recognise the importance of the parent/child relationship being supported.

1. Just going back to Ms B’s comments:

   [The child’s] most spontaneous and heartfelt comment was, "All kids want their parents to like each other". 

2. Ms B suggests that there be orders to enable the mother to continue to spend time with the child even though she was dealing with this issue of the mother going overseas. 

   [The child] is old enough, lived with his mother long enough to have block holiday stays even if he is not seen by his mother for extended periods in between.  The longer stays will assist [the child] by reducing the number of transition he has to make between his parents.  When parents are in high conflict frequent transitions are difficult for children and impact negatively on their enjoyment of visits especially at the beginning and end of visits.  The father's approval is very important to [the child] so it would greatly assist [the child] if his father was to encourage him to enjoy time with his mother despite his misgivings.

3. Going to the additional considerations.  We have the views expressed by the child and factors such as his maturity and understanding that would be relevant to the weight it should be given.  Here the views are clear.   I have referred to Ms B’s comments in relation to the weight they should be given.  As to the nature of the relationship of the child with each of the child's parents.  Well, at the moment, on the face of it, we have got some real problems.  The child's relationship with the mother seems to be fractured to the point where the mother feels in some sense that she cannot by force of her own personality alone control the child and direct the child in the context of the recent events and the father thinks that these issues should be left up to the boy.

4. The willingness of the parents to facilitate a close and continuing relationship between the child and the other parent.  The mother has always been able to foster a proper relationship between the child and the father.  The father has been able to do that up until now but now he has stopped. As to the practical difficulty and expense of spending time - there is not really a huge issue about that. As to the capacity of the parents - to some extent that is in issue. The parties have very different parenting styles.  There is a cloud hanging over the mother in terms of protecting the child from conflict.  There is a cloud hanging over the mother in relation to her disciplining the child in an unnecessary way and there is a cloud, of course, in relation to the child being struck.

5. For the father there is a concern raised by Ms B that he is not sensitive to the child's  needs, that he leaves the child to make these decisions. Ms B observes that there is not the normal comfortable, relaxed attachment between the father and the child. The child exhibits clingy behaviour and needing physical support all the time. As to the maturity, sex, lifestyle, background of the child and any other special factors – there is reference in the mother's material about issues for the child.  She talks about the child being wired. The boy makes reference to not being able to get to sleep. There is some reference to him not settling down well after visits. There is reference to him not paying attention at school.

6. So it is possible that on top of everything else there is an issue there that the parties need to follow up. Whether it is a dietary issue or something that makes him very vulnerable to the situation in which he finds himself. As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents - it is hard to know about that. Problem with the father is that he always thought the mother was violent and yet he left arrangements in place with the child living with her most of the time. Now he believes that the arrangements should be left to the child. That is a nonsense, of course.  If there is danger for the child in the mother's household, the last person you would leave this decision up to would be the boy.

7. As to the mother, she has been the primary caregiver, she says, and yet she is not able to get him to come along with her for more than about an hour at a time.  And I made a reference to the boy not being allowed to phone.  As to family violence - it is alleged, but we cannot get to the bottom of it.  We know that the police are not going to pursue it any further.

8. They are the matters that I am to take into account.  I am not allowed to make a finding of fact on a disputed issue of fact.  In relation to allegations, the requirement is to make an assessment as to whether the risk is an acceptable risk or an unacceptable risk.  In that regard, DOCS do not think the allegations are worth pursuing. The police do not think there is anything that they can take on board. The complainant is not a baby. The authorities have a child who could give evidence and so on.  There is no objective evidence that there has been a serious problem in the past. There are no hospital records that I am told about in respect of bruising or reports by a school about the child being neglected or not thriving. No evidence that he did not meet milestones in terms of his weight or development. There are no serious allegations made by either of the parties about those things.

9. Thus we are left in a difficult position. Things are reported by the child that are not corroborated or supported by anything of significance from anywhere else.  Some of the boy's reports are in language that does not seem to be characteristic of a child of his age. That is unusual for something that he has generated without any assistance. Children are unreliable witnesses. If a child is asked the same question twice, he may think that the first answer was wrong.  If somebody the child loves says something that suggests an answer, like "Who touched you on the bottom?" then a child may offer a name, rather than think to say, "Nobody touched me on the bottom".

10. That is one of the problems that Ms B has raised about multiple interviews. It happens all the time. Parents who are suspicious and nervous about something jump to a conclusion about an issue. They then put a leading question to the child. The child thinks the parent wants a particular type of answer.

11. In my view the proposal that the mother puts and Mrs Adams is supporting is a triumph of hope over experience. The mother is not able to keep the boy comfortable and happy. Similarly, if the father cannot foster a proper relationship between this boy and his mother, then that is going to have quite a significant impact on the ultimate decision made in these proceedings. For the overwhelming majority of Australian children, it is in the best interests of a child to have a proper relationship with their parents, to have the parents involved in all aspects of their life.  In a small percentage of cases a parent, for one reason or another, is not able to provide that, or a child's special needs are such that the parent cannot provide that. It is my job to keep valuable relationships alive.

12. The relationship between the mother and the child has been kept alive by these parties. They know the child best and arranged for the child to live with her for most of the time until the mother left to travel overseas. I will make orders of the sort that the mother proposes. Her time will be less than she did enjoy but the mother acknowledges a very clear, long held wish for the child to spend the predominance of time with his father.

13. The parents need to take responsibility for this. Nine year old children have no say in our community.  They are not asked whether they want to go to school.  They are not asked whether they want to take drugs.  They are not asked when they would like to go to bed.  They are not allowed to drive motor vehicles.  They are not allowed to vote.  They are not allowed to decide whether they would like medical treatment. In this case the parents need to give guidance to this boy. He needs to see a united front from his parents.

14. If the parents can manufacture a united front then in a sense he gets the wish that Ms B referred to. He will see his parents having a sensible relationship. The parties need to convince the child that they think the other parent is a loving, competent parent. They need to demonstrate that they want the child to spend time with the other parent and to reinforce that the other parent loves him and wants the best for him. If the parties can manage that it would be better than booking a university education for this child.

15. I will put these orders in place. There are safeguards in the community even after orders are made. The child will be seen by school teachers and medical practitioners and those people are obliged to make a report if they see a serious problem. In addition there is no reason to think that the mother would hold the child in her household in a distressed state if she thought the child would be comforted and calmed in the father's household.

16. Having said that, we cannot have a situation between the two households where the boy runs the show.  If this does not work, then I think we are going to need to get you some, and I not mean to be patronising about this, we need to get you some real help parenting this boy. What will happen when he is 10 or 11?

17. The parties have Mrs Adams as a resource.  If the parties are unable to make this work, then a further expert will be needed to explore the reasons for the boy’s behaviour and identify how much is due to his parents and how much comes from his own issues. As I indicated above, it may be that there are medical issues related to his body chemistry or personality that require attention.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  2 June 2009