MIZZI & WILSON

[2015] FamCA 881

FAMILY COURT OF AUSTRALIA

MIZZI & WILSON [2015] FamCA 881

FAMILY LAW – Parents agree on file orders but they are opposed by Independent Children’s Lawyer – Court’s approach is to order a report noting that the parents ultimately have to take responsibility for the children.

Family Law Act 1975 (Cth)

APPLICANT: Mr Mizzi

RESPONDENT: Ms Wilson

INDEPENDENT CHILDREN’S LAWYER: Mr Finn

FILE NUMBER: MLC 7285 of 2014

DATE DELIVERED: 13 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Ms Devine

SOLICITOR FOR THE RESPONDENT:

Leonard & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Finn

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

1. That all outstanding applications are adjourned to 10.00am on 29 February 2016 for mention.

2. Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the family consultant is directed to give the report on the following:

3. Whether the existing interim orders of the court are appropriate for the children named in them;

4. Whether having regard to the psychiatric evidence of Dr B and the affidavit of the father filed in the proceedings before Senior Registrar FitzGibbon relating to the mother’s parenting capacity and the standard of care of the children, has been ameliorated by:

   (a)Changes to the parties’ personal relationship to each other since April 2015; and

   (b)       The psychological assistance received by the mother since April 2015.

5. That the reasons this day be transcribed.

6. That the interim arrangements between the parents be varied to include that during school holidays, the parents share the children in a week about arrangement until further order.

7. 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 by this Court under the pseudonym Mizzi & Wilson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7285 of 2014

MR MIZZI

Applicant

And

MS WILSON

Respondent

REASONS FOR JUDGMENT

1. Before me today is an application that the Court make final orders in relation to C, who is four years of age, and D, who is two.  They are the children of Mr Mizzi and Ms Wilson.  There is no dispute that these children currently live predominantly with their mother and that their father has significant time with them. 

2. I have had an interesting discussion with counsel for the mother and also the father today as a result of the fact that the independent children’s lawyer appointed by the Court declined to consent to the orders that the parties had agreed upon.  The independent children’s lawyer’s position is that the Court should not, at this point in the history of these children’s lives, make these orders on a final basis, notwithstanding the orders that are proposed have in fact been the path that the children have trod along over the last six months.

3. The reason for the Independent Children’s Lawyer’s reticence, if  not a strong resistance, is that in April 2015 in an affidavit that the father agrees he signed and by which he, some six months later, still stands, described the mother’s behaviour as erratic and that he was being harassed by her.  It seems common ground that there was a mental illness issue or psychiatric problems and certainly lack of agreement about the parenting care of these two children.

4. Suffice to say that the senior registrar was sufficiently troubled about what was going on that he made an order that the parties attend upon a psychiatrist for a psychiatric report.  I have not read the Senior Registrar’s reasons, but I had the distinct impression that the order was being made against both parents more or less as a balancing act rather than its real intent which was to examine what was going on in the mother’s life. 

5. Indeed, when Dr B was so appointed, he had no concerns about the father, but came back with a significant diagnosis in relation to the mother.  Whatever that diagnosis might have been, Dr B said that he had concerns that the children were at risk in the mother’s care.  The extent of that risk is obviously not the psychiatrist’s province, but the function of the Court.  Here, six months later, and the parties say – and I use the word used by counsel for the mother – they are getting along “swimmingly”. 

6. In fairness, the father agrees and says that they are in a position where they can communicate with one another.  He has met the mother’s new partner.  There has been a change of residential arrangements and communication down to very small things is good.  In the ensuing period since April, the mother has attended upon a psychologist, initially weekly then fortnightly, but that has now stopped because in someone’s view, the mother’s psychological health is stable.  All of this is commendable and these two children hopefully have finally begun a pathway to adulthood with a lot of protection from  their parents. 

7. The parties say they need orders because, in whatever way they describe it, there is a lack of absolute trust in each other.  As the father quite sensibly said, his fallback position would be that he would need orders if “things went wrong”.  The mother’s position is that she “probably does not need” orders, but it would be very helpful if she did have them.  Because of the father’s position that, if things went wrong, he would take protective steps for these children one can understand the mother’s concern about wanting orders.  That might very well mean that  she would not be in a position to care for the children at all and she might be quite upset at the time, particularly if the facts were disputed.

8. It may be that once a social scientist looks at this picture, the answer lies very simply in the Court doing the best it can.  The parents agree on the sharing of responsibility and there does not seem to be any current dispute about the time between each of the parents and the children.  They have agreed upon injunctive orders in relation to particular named people so all does seem to be going “swimmingly”.

9. The difficulty that I have lies in s 65DAA(6) of the Family Law Act 1975 (Cth) (“the Act”) which reads that:

   If a Court is considering whether to make a parenting order with the consent of all of the parties to the proceedings;  and the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;  the Court may, but is not required to consider all of the matters that are set out in other parts of section 65DAA.

   And I add to that, in relation to the Act generally.

10. On the basis that the parties, perhaps somewhat hesitantly, still want these orders, the correct approach for the Court is to say that a report should be prepared  and if  things are still going “swimmingly”, the parties can have the Court’s endorsement of it’s the agreement.  In my view, that is the best way that the Court will find out whether these orders are in the best interests of these children.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Justice Cronin delivered on 13 October 2015.

Associate:

Date:  21 October 2015