Riccardi and Riccardi and Ors

[2017] FamCA 480

FAMILY COURT OF AUSTRALIA

RICCARDI & RICCARDI AND ORS [2017] FamCA 480

FAMILY LAW – CHILDREN – Children’s wishes – Where parenting and property proceedings resolved at trial except for one issue – Issue as to what form orders should take in relation to children spending time with each parent – Parties in agreement that children should spend time with each parent  as per children’s wishes – Children aged 16 and 15 – Children to spend time with each of the parents at the children’s wishes – Default order included in relation to one child spending time with father – Default provision reflected child’s current wishes.

Family Law Act 1975 (Cth) ss 60CC, 62B, 65DA, 65DAA

APPLICANT: Ms Riccardi

FIRST RESPONDENT: Mr Riccardi

SECOND RESPONDENT:	Mr G Riccardi
THIRD RESPONDENT:	H Pty Ltd as Trustee for the J Trust

INDEPENDENT CHILDREN’S LAWYER: Mr Lynch

FILE NUMBER: DGC 2829 of 2014

DATE DELIVERED: 10 July 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Melbourne

JUDGMENT OF: Tree J

HEARING DATE: 24 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Potter

SOLICITORS FOR THE APPLICANT: Bayside Solicitors

THE FIRST RESPONDENT: In person

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Hall

SOLICITORS FOR THE SECOND RESPONDENT: Comito Iacovino & Co

COUNSEL FOR THE THIRD RESPONDENT:	Mr Laidlan
SOLICITORS FOR THE THIRD RESPONDENT:	Sayer Jones Pty Ltd
COUNSEL FOR OTHER	Mr Rigby (amicus)
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms O’Connell
SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER	Peter Lynch

Orders

PARENTING MATTERS

1. All previous parenting orders are dismissed.

2. That the mother and the father have equal shared parental responsibility for the children B born … 2000 (“B”) and C born … 2002 (“C”);

3. The child B live as follows:

   (a)With the father on each alternate weekend during school terms and for half of the school holidays and such further or other times in accordance with B’s wishes;

   (b)With the mother at all other times.

4. The child C live the mother.

5. The child C spend time with the father in accordance with C’s wishes and with the agreement between C and the father.

6. The father and the mother or either of them facilitate the children B and C attending upon such counsellor, psychologist or other mental health professional to whom they may be referred by their general medical practitioners or school.

7. For the purposes of paragraph 6, neither parent shall interfere in the therapeutic relationship between the counsellor or other professional the child/children attending.

8. Each of the father and the mother notify the other as soon as is practicable should either B or C suffer any serious injury or serious illness whilst in their respective care and provide the name of any treating medical professional.

9. Each of the father and the mother be entitled to obtain the information provided to parents by the children’s schools and treating medical professionals.

10. The father, the mother and the paternal grandfather are restrained by injunction from:

    (a)Discussing these proceedings between them or allowing any other person to do so in the presence or hearing of the children; and

    (b)Denigrating each other or allowing any other person to do so in the presence or hearing of the children.

11. Each of the children B and C spend time and communicate with their paternal grandparents according to their wishes.

12. The Independent Children’s Lawyer is forthwith discharged.

13. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

14. 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.

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 < 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: DGC2829/2014

Ms Riccardi

Applicant

And

Mr Riccardi

First Respondent

And

Mr G Riccardi
Second Respondent

And

H Pty Ltd As Trustee For J Trust
Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction  

1. On 24 April 2017, the trial of both parenting and property matters between the parties commenced before me in Melbourne.  However at an early stage, with the exception I shall shortly determine, the parenting proceedings resolved, and the matter proceeded only in relation to property.  Ultimately those property proceedings resolved by consent on Thursday 27 April.

2. The unresolved children’s matter is one of form rather than substance, and has to do with the way in which orders relating to the two children the subject of these proceedings (being the child B born in 2000 and hence presently 16 years of age, and the child C born in 2002, and hence presently 14 years of age) are cast.  For their part, the Independent Children's Lawyer and the mother proposed the following orders:

   2.     That the mother and the father have equal shared parental responsibility for the children B born in 2000 (“B”) and C born in 2002 (“C”);

   3.     The child B live as follows:

   (a)     With the father on each alternate weekend during school terms and for half of the school holidays and such further or other times in accordance with B’s wishes;

   (b)    With the mother at all other times.

   4.     The child C live the mother.

   5.     The child C spend time with the father in accordance with C’s wishes and with the agreement between C and the father.

3. On the other hand, the father proposes that the orders simply provide for the children to live with each parent as they may wish.  Of course that is the practical effect of the orders sought by the Independent Children's Lawyer and the mother, but there is, absent the expression of any such wish, a default position established.  In substance, the father says that the default position as contained in the orders as sought by the mother and Independent Children's Lawyer sends a message to both children that they are being treated differently to each other.  I will consider the detail of that argument in due course.

BACKGROUND FACTS

1. The mother was born in 1968, and hence is presently 49 years of age.  The father was born in 1969, and hence is presently 48 years of age.  The parties were married in 1997 and in 1998 the mother gave birth to the parties’ oldest son, D who is now 18 years old.  As I have indicated, the other two children, B and C were born in 2000 and 2002 respectively.  The parties finally separated on 16 September 2016.  Since then the children’s living arrangements have varied.  However at the time of trial the child B was living with the mother and spending alternate weekends and half of school holidays with the father, whereas the child C was living with the mother and spending time and communicating with the father if and when he sees fit so to do.

WHAT FORM SHOULD THE ORDERS TAKE

1. It is agreed between all of the parties that in fact both B and C ought be able to choose what, if any, time, they wish to spend with either parent, and the extent of any such time.  However the mother and Independent Children's Lawyer proposed that regime ought have a default position reflecting, in effect, the present arrangements, namely that B primarily lives with the mother but spends alternate weekends and half of school holiday time with the father, and C spend such time and communicates with the father as he may see fit.

2. The parties have agreed that there should be equal shared parental responsibility. Although that therefore engages s 65DAA, in fact neither party contended that there should be orders for equal time or that there should be orders for substantial and significant time, but rather that each child should be able to vote with their feet. I am quite persuaded that indeed the parties position in relation to that is sound: in the case of a 16 year old child, seeking to coerce them to something which they do not wish would plainly be problematic, and there are particular facts pertaining to C which I shall deal with shortly which likewise means that any attempt to coerce him against his wishes would almost certainly fail. I am therefore satisfied that it is in the best interests of the children that there be no orders for equal time or substantial and significant time.

3. The facts in relation to C are a little controversial, but no matter what be the correct position, it is plain that he has demonstrated some problematic behaviours.  At the time he was living primarily with the father, he engaged in what might be described as anti-social behaviour at school, in consequence of which he became suspended.  There was then some species of altercation between he and the father which ultimately has led to the police seeking and obtaining an interim intervention order against C, requiring him to be of good behaviour towards the father.  Whatever be the facts which led to that situation, after the altercation C ceased living with the father and now lives with the mother.  This is apparently in accordance with his wishes, although precisely how long his wishes will remain in their present form is unclear.

4. The mother and Independent Children's Lawyer justify the form of the orders for which they contend on the basis that is consistent with both children’s wishes. They therefore place considerable weight upon the additional consideration at s 60CC(3)(a). Particularly they say that B has consistently expressed a wish to primarily live with the mother but spend alternate weekend and half holidays with the father, and has so expressed that wish to a family consultant on 11 December 2014, 31 July 2015 and in the most recent Family Report interviews.

5. On the other hand in relation to C, the Independent Children's Lawyer and mother concede that he has expressed different wishes at different times.  His most recent expression of wishes post-dates the Family Report, and in that regard the Independent Children's Lawyer gave oral evidence before me as to conversations which he had with C.  He said that he had spoken with him on 20 March of this year, on which occasion the child said that he wished to live with the father and spend time with the mother.  However he spoke to him again on 27 March (after the altercation) when C told him that he now wanted to live with the mother and not see the father for the time being.  The third conversation between the Independent Children's Lawyer and C was on 17 April, in which he indicated to the Independent Children's Lawyer that he wanted to continue to live with the mother.

6. In this respect the Independent Children's Lawyer noted correctly that in the Family Report, the writer had indicated that C’s wishes as expressed at the time should be respected and orders made consistent with them.

7. For his part the father seemed concerned that orders as sought by the Independent Children's Lawyer risked further court proceedings in the form of a contravention application.  I confess to a little difficulty in understanding that given that the substance of both party’s proposals is identical.  However the primary position of the father was that both of the brothers should be treated equally, and that the default positions contended for by the mother and Independent Children's Lawyer did not treat the children equally, and potentially sent a message to them that their relationships with the father were not equal.

8. However whilst that is a possible message that the children could take from the form of any orders, the substance of it would not be lost on them – they get to choose the circumstances and duration of the time that they spend with both of their parents.  Plainly that is their wish.  The message which they will therefore take from the orders is that their wishes have been listened to and respected.  Particularly, the casting of the orders by the Independent Children's Lawyer and mother picks up the children’s current wishes and specifically recognises them.  However the orders also recognise that those wishes may change in the future.  But for the time being those plainly are the children’s wishes.  Given their ages, and in relation to C, the recent turmoil in his life, I am satisfied that it is not merely appropriate, but imperative, that the children’s wishes are given considerable weight.

9. I have otherwise considered the primary and additional considerations listed in s 60CC, although most have little work to do in relation to this narrow dispute. I should, however, specifically advert to those considerations which relate to family violence: it is not possible to determine precisely what happened in the altercation involving C and the father, save that it appears as though there was actual physical violence involved. Who was the perpetrator, and whether or not that physical violence had some justification, are matters which I cannot determine in these proceedings, in the way in which they were ultimately litigated.

10. I am satisfied that it is in the best interests of both children that the orders be cast in the way contended for by the mother and the Independent Children's Lawyer and will so order.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.  

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 July 2017.

Associate: 

Date: 10 July 2017