Riccardi and Riccardi

[2016] FamCA 1057

FAMILY COURT OF AUSTRALIA

RICCARDI & RICCARDI [2016] FamCA 1057

FAMILY LAW – Contravention of parenting order — contraventions found not proved — consequential orders — case management — independent children’s lawyer

APPLICANT: Ms Riccardi

RESPONDENT: Mr Riccardi

FILE NUMBER: DGC 2829 of 2014

DATE DELIVERED: 9 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 9 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weerappah

SOLICITOR FOR THE APPLICANT: Bayside Solicitors

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

IT IS ORDERED:

1.That the contravention application of the father filed on 18 January 2016 be and is hereby dismissed.

2.That this matter be otherwise referred to the Docket Registrar to be listed for mention in the Directions List on a date to be advised to the parties in writing.

3.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children B born … 2000 and C born .. 2002 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to meet the children and, in his/her discretion their brother Mr D born … 1998.

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

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

6.The parties and the Independent Children’s Lawyer be restrained and an injunction is hereby granted restraining each of them from making any complaint to a professional body or association concerning the conduct of any social science expert or concerning the content of the expert's report, or permitting any other person to do so, without first obtaining leave of the Court. 

7.The preceding injunctions remain in full force and effect following completion of the proceedings.

8.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared.  For that purpose the parties and children B born … 2000 and C born … 2002 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.

9.The family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)      an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

e)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible.

10.For the avoidance of doubt the family consultant be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)      any documents produced on subpoenae and released for inspection by all parties;

c)      any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d)      any documents or things referred to in this Order.

11.The parties do all acts and things necessary to invite D, who has now attained the age of 18 years, to participate in the preparation of the s 62G(2) report to the extent to which the family consultant preparing the report considers appropriate.

12.The father do all acts and things necessary to secure the attendance of the paternal grandfather at the assessment interviews for the family report to such extent as the family consultant advises the parties is appropriate.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Riccardi & Riccardi 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 2892 of 2014

Ms Riccardi

Applicant

And

Mr Riccardi

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me in the judicial duty list in relation to the husband’s contravention application which was filed on 18 January 2016 and contains eight counts of alleged contraventions in relation to consent orders (“the primary order”) made on 11 December 2014 as amended by the Order made on 20 August 2015. Both orders were made in the Dandenong registry of the Federal Circuit Court of Australia by Judge Phipps.

2. In the proceedings the wife was represented by Mr Weerappah, solicitor, and the husband was represented by a solicitor in December 2014 and appeared on his own behalf in August 2015.

3. The children with whom the primary order is concerned are D, born in 1998, who is now 18 years of age and now clearly no longer a child; B, born in 2000 who is now 16 years of age; and C, in 2002, who is now 14 years of age.

4. The relevant paragraphs of the primary order (11 December 2014) under Exhibit A are as follows:

   1. That the child [D] born … 1998 (“[D]”) live with each parent on a week about basis save as specified in these Orders and live with arrangements with the Respondent are to commence from his return from school or 4.00pm (whichever applies) on Friday 12 December 2014.

   2. That the child [B] born … 2000 (“[B]”) live with the Applicant and spend time and communicate with the Respondent each alternate weekend (save as otherwise outlined in these Orders) commencing from his return from school or 4.00pm (whichever applies) to commence on Friday 12 December 2014 until the commencement of school following Monday at 9.00am.

   3. That the child [C] born … 2002 (“[C]”) shall live with the parties as follows:

   a. With the Applicant for the weekend commencing Friday 12 December 2014 until the commencement of school the following Monday;

   b. When C commences secondary school in the year 2015 he shall live with the Applicant each alternate week when the child [D] lives with the Respondent when actually or theoretically in the established cycle;

   c. With the Respondent at all other times.

   4. Notwithstanding any other Order the children shall live with each party on a week about basis during school holidays including the long summer vacation and in the case of the long summer vacation commencing in 2014 the children shall live with the Applicant on a week about basis commencing at 4.00pm on Friday 19 December 2014 and concluding at 4.00pm Friday 26 December 2014 as the commencement of a cycle.

   …

   6. That where changeover is impractical at the bus stop where the children return from school that changeover will be at the front of the respective parties’ residences and the delivery party or agent shall remain in the vehicle and the other party shall not approach that vehicle.

   …

   14. Notwithstanding the operation of any of the live with Orders each party will accommodate the expressed live with arrangements of the children [D] and [B] and facilitate a return to whichever parent they nominate they wish to be returned to.

5. On 20 August 2015 there were further proceedings. It was ordered as follows:

   1. THAT paragraph 3 b) of the order made 11 December 2014 is discharged.

   2. THAT the child [C] born … 2002 live with each parent at the same times as [D] born … 1998.

   3. THAT otherwise the order made 11 December 2014 remains in full force and effect.

6. In these proceedings before me the husband (who is the applicant) appears in person, and Mr Weerappah appears on behalf of the wife. The wife attended court. Lawyer for the wife advances some technical arguments which were unsuccessful and/or let to an amendment of the application.

7. I have heard oral evidence from both the husband and the wife.

8. The wife denies the contraventions.

9. At the conclusion of the husband’s case I determined that the mother had a case to answer.

10. The counts appear to me to fall into two categories. The first category includes seven counts in relation to regular school term time. The common basis being that the wife concedes that the children did not spend time with the husband in accordance with the times and dates set out in the primary order, but says that that occurred because the relevant children, being either B or D, expressed a desire not to attend time with the husband. This brings into focus the unusually worded paragraph 14 of the order made on 11 December 2014, which I have extracted above.

11. The second category is count 8, wherein the husband alleges that on 8 January 2016 at 4.00 pm the wife without reasonable excuse refused to allow him to spend time with the three children for one week of holidays pursuant to paragraph 4 of the primary order. In that respect the wife asserts that she believed that that there had been an agreement and that the agreement had been reflected in an order of the court so she was entitled to have the children with her for two weeks commencing 8 January 2016. On this point, I was satisfied that there was a prima facie case to answer, whereupon the wife went into the witness box and was cross-examined.

12. In relation to the first category of contraventions — they pertain to matters where the wife says that she is excused from compliance with the order, at least in relation to the two older children, because those children were entitled to decide not to attend for time. Paragraph 14 of the order made on 11 December 2014 is not clear. The order is not clearly worded and it is open to a number of interpretations. However, what the evidence of the parties does satisfy me of is that both parties have read that order as entitling D and B to decide whether or not to attend for time. The husband says that for his part he thought the children should attend and be returned. That seems to be an unduly complicated way of looking at it, and the gist of his evidence was in my assessment that he recognised that D and B were given a choice as to whether or not to attend for time.

13. The wife was cross-examined about those matters and her account of the children having said that they do not want to attend was not shaken. I accordingly, am not satisfied that the order was breached in relation to D and B.

14. In relation to C, who has not had the benefit of the inelegantly worded paragraph 14 until (arguably) 20 August 2015, the wife sought to rely upon his desire not to attend as well. The husband has included C in count 2 on 26 June 2015. That is the only instance of the inclusion of C. Notably, when the matter returned to court on 20 August 2015 it was agreed that C would only attend when D had to attend. So within about two and a half months of that spend-time occasion where C did not attend he was relieved of having to attend if D did not attend — D, as I have indicated, was subject, whilst a minor, to an entitlement under paragraph 14 to not attend as he wished.

15. The husband for his part has C residing with him now, and it is common ground that he cannot get the child C to attend time with his mother. So in the circumstances I am satisfied that the wife should not be held accountable for C’s failure to attend on 26 June 2015. I dismiss count 2 accordingly.

16. That leaves me with count 8, which relates to Christmas school holidays. Both parties referred to the fact that a s 11F of the Family Law Act 1975 (Cth) children and issues assessment was prepared in the registry and dated 31 July 2015. It was the second of two assessments prepared in the Dandenong registry and was prepared by Ms E, family consultant. On the first page under “agreements reached” it says as the third dot point: “That the sibling group spend at least one two week block with each parent during the summer school holidays. Mr [Riccardi] agreed to the boys spending time with Ms [Riccardi] from 8^th January 2016 until 24^th January 2016”.

17. The husband takes issue with the admissibility of the child and parent issues assessment dated 31 July 2015 and an earlier one by Ms F dated 11 December 2014. Having listened to his submissions, I do not understand the basis of his objection. They are assessments done for the Court for these proceedings. There is clearly evidence that it was agreed during the child-inclusive conference. The fact that it was a child-inclusive conference also leads me to conclude that the child was aware of the agreement which had been reached. 

18. In evidence the husband testified that, when orders were made by Judge Phipps on 20 August 2015, he specifically challenged the assertion that he still agreed that the wife could have two weeks in January 2016. The wife’s evidence was that she was in Court and there was no such challenge. The Court has had the benefit of listening to the audio recording of part of the proceedings before Judge Phipps, and I am satisfied that a reasonable interpretation of the proceedings before Judge Phipps is that the husband did in fact challenge and say that in effect he was not agreeing to two weeks of time for the children with their mother commencing on 8 January 2016.

19. It is submitted on behalf of the wife that that may be an objectively reasonable interpretation of what occurred. Nonetheless, the wife’s subjective view was that there had been an agreement. In the circumstances it seems to me most unfortunate that Mr Weerappah in the four months between August 2015 and the long summer school vacation did not clarify with his client what had occurred before Judge Phipps on 20 August 2015.

20. It seems to me not so much a matter of the wife’s subjective belief but that the wife has made a mistake of fact that an order was made when an order was not made. Whilst there were four months before the school holidays, it was not until 1 January 2016 that the husband raised this specifically with the wife in the form of a letter dated 1 January 2016 and addressed to the wife’s solicitors. I accept that it was sent both to the wife and the solicitors on the date that it bears. I further accept that the solicitors office for the wife were not open being closed for the festive season on that date, and the response was that their client had not contravened any of the parenting orders.

21. It is unfortunate but I think that the order and the proceedings were attended by sufficient doubt that I am prepared to accept that the wife did make a mistake of fact. Accordingly, on balance I am not satisfied that the wife has contravened the orders in relation to school holidays. I am concerned, however, that there has been an element of high-handedness on behalf of those who represent the wife in their interpretation of orders, and I caution against that occurring into the future. I will dismiss the husband’s contravention application.

22. Turning to what now should flow from the fact that the contravention was alleged and found not to have occurred, the Court has various powers to alter the parenting orders. It seems to me that paragraph 14 of the primary order is not adequately worded. Both parties, as I understand it, are not particularly satisfied with that order and would be addressing its wording and operation in final parenting proceedings. In the circumstances it seems to me that there ought not be a determination by me which would alter what the children understand the arrangement is at the moment, or what the parents understand the arrangement to be at the moment.

23. That brings me to the proceedings themselves. These proceedings were instituted by the wife on 6 September 2014 in the Federal Circuit Court at Dandenong. The parties had separated on 16 September 2013. There were Department of Health and Human Services (“DHHS”) notifications and consequential reports in 2014 and 2015. In both instances it was the view of DHHS that the matter was adequately before the Federal Circuit Court and that it did not need to intervene.

24. There have been the two s 11F children’s and parents issues assessments to which I have referred. The matter was apparently set down for final hearing before Judge Phipps on 18 April 2016 — some 18 months after the proceedings had been instituted. The matter did not proceed. I am told from the bar table by both the husband and the solicitor for the wife that it was only at the final hearing that Judge Phipps decided that there ought to be a s 62G(2) family report, that is a full family report. It is not clear to me how the matter was set down for final hearing without one, but certainly as of 18 April 2016 the judge formed the view that there should be one. He also formed the view that the matter should be transferred into this Court.

25. One aspect would have been the property applications which the husband today has described as being “a hideously complex property case”. The solicitor for the wife describes them as property proceedings in which the husband has a position that the wife should get nothing. The proceedings were transferred into this Court on 18 April 2016. They were listed before a Registrar on 10 June 2016. A conciliation conference in relation to property matters occurred on 22 September 2016. There was no agreement and the matter was not placed in any list of cases awaiting allocation to a judge for final hearing, instead it was sent to me to determine the contravention application.

26. I have now determined and dismissed the contravention application and the other proceedings will come on for hearing in due course.

27. C is by all accounts a troubled child. In my view there needs to be some proper assessment of parenting arrangements. I am mindful, though, that the children are growing up, and that C, insofar as he is still only 14 years of age, has had examples of his two older brothers being able to choose whether or not they have spend time.

28. At the moment, C is continuing to reside with the husband and has not spent time with the wife since late January 2016. It seems unsatisfactory in the circumstances.

29. What I propose to do is to order a s 62G report. I know that in so doing I run the risk of the report being available before the Court has the resources to get to a parenting case. However, it seems to me that when a report is available the parties should look carefully at whether or not the parenting aspects can at least be resolved and then just proceed merely on the financial proceedings.

30. Both parties maintain that the children’s views are important and that their voice should be heard. In my view the voice of the children is likely to be heard under a s 62G(2) report, but there should also, in the circumstances, be an independent children’s lawyer.

31. The role of the independent children’s lawyer is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what he or she believes those best interests to be.[1] The independent children’s lawyer is not a legal representative retained by the children and he or she is not bound by any instructions from them.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[4]

    [1] Family Law Act 1975 (Cth) s 68LA(2).

    [2] Family Law Act 1975 (Cth) s 68LA(4).

    [3] Family Law Act 1975 (Cth) s 68LA(5)(d).

    [4] Family Law Act 1975 (Cth) s 68LA(5)(e).

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 9 November 2016.

Legal Associate:

Date: 2 December 2016