Petrovic and Petrovic

[2007] FamCA 1547

FAMILY COURT OF AUSTRALIA

PETROVIC & PETROVIC [2007] FamCA 1547

FAMILY LAW – CHILDREN – With whom children live – Orders – Where children previously ordered to live with mother – Where father purported to challenge prior orders – No substantial submissions made – Where father presents as having psychological condition – Where psychologist suggests psychiatric assessment – Previous orders stand – Parties ordered to attend psychiatrist

Family Law Act 1975 (Cth)

APPLICANT: Ms Petrovic

RESPONDENT: Mr Petrovic

FILE NUMBER: BRC 7667 of 2007

DATE DELIVERED: 25 October 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 25 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Scott, Solicitor as Duty Lawyer

SOLICITOR FOR THE RESPONDENT: In Person  (with an interpreter)

SOLICITOR FOR INDEPENDENT

CHILDREN’S LAWYER

Mr Williams, Solicitor, Williams Lawyers appeared for the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The Independent Children’s Lawyer shall notify the parties of any appointments they are required to attend with a psychiatrist and provide the psychiatrist with copies of any relevant documents on the Court file including the report of Mr S dated 4 October 2007 together with copies of any relevant subpoenaed documentation.  The Independent Children’s Lawyer shall be responsible for payment of the psychiatrist’s fees subject to approval by Legal Aid Queensland.  The Independent Children’s Lawyer shall ensure a copy of the psychiatrist’s report, once completed, is made available to each of the parties.

2. The Mother’s Application in Form 1 dated 26 June 2007 is adjourned to the Judicial Duty List at 10.00 am on 18 February 2008.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Order of Justice Jordan of 2 August 2007 remain in place but that an additional order be made:

   a.The Father is to spend no time with the children nor communicate with the children, M, born … January 1994 and N, born … August 1997, other than with the written permission of the Mother or by Order of this Court.

2. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7667 of 2007

MS PETROVIC  

Applicant

And

MR PETROVIC  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I will give brief reasons for judgment.  The children in this matter consist of a boy, M, aged 13, and a girl, N, aged 10.  The parties separated in relatively recent times.  The mother is of Russian heritage, the father is of Serbian heritage.  They spent a period of time, after emigrating from Europe, in New Zealand but have currently been living in Australia for some years.

2. Orders were made by Jordan J on 2 August this year and those orders provide that the children live with the mother and that the mother have sole parental responsibility for the care of those children.  Importantly his Honour, when giving his reasons, adverted to the issue of what communication there should be between the children and the father and at paragraph 7 of his Honour's reasons, he made crystal clear that in his view, having regard to the terms of the report from Mr S, there should be no communication between the father and the children.  He noted:

   "Given the gravity of the mother's yet to be tested allegations, given the prospect that if what she says is true, it is indeed viable that the children may be apprehensive about contact."

   And then he said:

   "I'm loathe to make an order, even for supervised contact, until such time as the Independent Children's Lawyer is able to assess the matter and assist the Court."

3. Mr S' report makes for sad reading.  He gives a scathing assessment of the father.  I shall briefly refer to his report.  My attention was drawn to paragraph 19 where he said:

   "Whilst there were many comments by [the father], these were reiterations of his holistic criticisms and complaints and were rendered in a manner that was hard to follow and difficult to summarise.  It is noted that he does not provide his perception of why [the mother] elected to end the marriage or to do so in late 2006, while it appears to be that he thinks it involved another man.  He does not locate or describe any problems in the father-children relationships but attributes any possible difficulties the children may have to alienation by the mother.  [The father] presents as being a man with poor impulse control, easily agitated and uncontained in his expression of anger, critical of others, avoidant of self scrutiny and uncooperative in the family reporting process.  It may be that a psychiatric assessment would assist others in understanding whether his attitudes, behaviour and beliefs are grounded in his inherent personality traits, or whether they're issues regarding psycho pathology and dysfunction.”

4. Some of the traits, some of the behaviours of the father, I would say, are consistent with a person with a gross borderline personality.  In other words they project onto others their very own failings.  Everybody else is wrong.  It may be that he has a personality disorder; it may be a cultural issue.  There may be some other explanation but his behaviour to date is quite unsatisfactory.

5. I have read the report and I note, in particular, that Mr S has seen the two children independently of their mother.  He interviewed them separately.  The report at paragraph 34:

   "The boy says that his parent's current conflict is one where his mother's position is that she knows we don't want to contact dad in any way so we stay away from him and he stays away from us.  He is unaware of his father's position.  He reiterates that he does not want contact with his father during the family report or for his views to be shared with [the father].”

6. I bear in mind that this is a 13 year old at high school.  Apparently he is a promising sports player.  He is of an age where his wishes need to be respected.  N is 10 years of age.  She responded by saying, paragraph 39, she understands that her mother's aspirations are to:

   "Let me and my brother stay with her and have no contact with my dad.  While she is unsure as to what her father's aspirations are, [N] reiterates that she wants to live with her mother and brother and have no contact with her father.  She indicates that she doesn't want her rendered thoughts and feelings to be shared with her father during the family report interviews, and states that prior to the report [the father] did not talk with her about what she wanted to say in the family report.”  

7. The father did not appeal the decision of Jordan J.  He simply came back and tried to re-litigate the same issue before me.  Whilst I have allowed him to do so, I see no merit in the submissions that he has made.  I am of the view that if this matter proceeds to a hearing, the Court would be greatly assisted by a psychiatric assessment of the parties.  The Independent Children's Lawyer has offered to make the necessary arrangements.  It is in accordance with the recommendation of Mr S, an experienced psychologist.  The view that I take is that the current orders can remain in place. 

   ORDER DELIVERED

   RECORDED:  NOT TRANSCRIBED

   ORDER DELIVERED

8. So the order of Jordan J will be amended.  It was not spelt out in the previous order.  It was clear from his Honour's reasons that that was what he intended.

RECORDED:  NOT TRANSCRIBED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate 

Date: 25 October 2007