Serbacic and Serbacic

[2007] FamCA 853

FAMILY COURT OF AUSTRALIA

SERBACIC & SERBACIC [2007] FamCA 853

FAMILY LAW - CHILDREN - With whom a child lives - Child's views

Family Law Act 1975 (Cth)

APPLICANT: MR SERBACIC

RESPONDENT: MS SERBACIC

INDEPENDENT CHILDREN’S LAWYER: McCluskys

FILE NUMBER: MLF 2929 of 2005

DATE DELIVERED: 02 AUGUST 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: DESSAU J

HEARING DATE: 31 JULY 2007 & 1 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Sala

SOLICITOR FOR THE RESPONDENT: Zeljko Stojakovic Solicitors

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Eidelson

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: McCluskys Solicitors

Orders

1. That all previous parenting orders shall be discharged.

2. That the parties shall have shared parental responsibility for the children, a daughter born in February 1995 and a son born in May 1999, and that major issues shall be determined between the parties in writing.

3. That the children shall live with the wife.

4. That the children shall spend time with the husband as follows:

   (a)Each alternate week-end from 5.00pm Friday to Monday at the start of school, commencing 3 August 2007;

   (b)For one half of each of the school term vacations and the long summer vacation on dates to be agreed between the parties and in default of agreement, the first half;

   (c)For two hours on the husband's birthday, where it falls on a school day or four hours if a week-end;

   (d)From 10.00am on Father’s Day until the start of school the next day.  In the event that the husband’s contact falls on Mother’s Day week-end, such time spent is suspended from 10.00am on Mother’s Day;

   (e)From 3.00pm on 25 December 2007 until 3.00pm on 26 December 2007 and each alternate year thereafter and from 3.00pm on 24 December 2008 until 3.00pm 25 December 2008 and each alternate year thereafter;

   (f)From 3.00pm on 6 January 2008 until 3.00pm on 7 January 2008, and each alternate year thereafter, and from 3.00pm on 7 January 2009 until 3.00pm on 8 January 2009 and each alternate year thereafter;

   (g)From 5.00pm the day prior to St. Nicholas Day until 8.00pm on St. Nicholas Day (19 December);

   (h)On each of the children’s birthdays as agreed between the parties;

   (i)By telephone or SMS on Wednesday of each week; and

   (j)At such further and other times as may be agreed between the applicant husband and respondent wife.

5. That save for where change-overs are specified to occur at the children’s school, change-over for all time spent between the children and the husband shall take place by the wife delivering the said children to the front of A Street Shopping Centre, (“the Subway shop”) at B at the commencement of all time spent and the husband returning the children to that location at the conclusion of all time spent.

6. That each of the husband and the wife, their servants and agents, shall be and are hereby restrained from:

   (a)Smoking in the immediate presence of the said children, and neither parent shall permit smoking in the children’s homes; and

   (b)Using corporal punishment upon the children.

7. That all parenting applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation in the court.

8. That the appointment of the Independent Children’s Lawyer shall be hereby dismissed.

9. 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 IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as SERBACIC.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2929  of 2005

MR SERBACIC

Applicant

And

MS SERBACIC

Respondent

REASONS FOR JUDGMENT

1. This case is about arrangements for the parties’ 12 ½-year-old daughter and 8-year-old son.

2. The case has taken an unusual course.  After several years of litigation and a hotly contested two-day hearing, in the course of his final submissions, the father conceded that, with some minor additions and adjustments, the orders proposed by the Independent Children’s Lawyer, and supported by the mother, should be made.  In those circumstances I would usually make the orders without giving any reasons for judgment.  But in this case, a brief summary of the children’s circumstances, based on the evidence, should be recorded.  That evidence fully supports the concessions made and the agreement reached, and the summary will hopefully help to provide the “closure” that has been eluding this family.

3. The court process has been long and difficult for all family members.  There has been on-going litigation in this court and various intervention order proceedings in Magistrates’ Courts and the Children’s Court.  The father has obviously found it particularly difficult.  He has appeared without legal representation.  He and his former wife came to Australia from a European country in the 1990s.  They have both required the assistance of an interpreter.  The father is a disability pensioner, suffering post traumatic stress disorder arising from his experiences in Europe.  Despite every assistance given to him by the court, and appropriate concessions and assistance by counsel for the Independent Children’s Lawyer and the mother, it was obvious that the father still found it difficult to focus on the relevant issues.  And although during the evidence he seemed to make some concessions that normally would have ended the case, it was only in his final submissions that his position really became clear and he initiated the agreement that has been reached.

4. The daughter has lived with her mother since her parents separated more than six years’ ago.  She spends regular time with her father.  The son lived with his mother until mid-2005 when the father kept him in his care, saying the son complained that a friend of the mother’s (known only as “[T]”) assaulted the son by kicking him.  There was a Department of Human Services investigation.  They had no protective concerns.  There was a Family Report.  It was clear the son wanted to return to live with his mother, and that was the Family Report writer’s recommendation.  In April 2006 Guest J made interim orders for both children to live with their mother, and spend regular times with their father.   

5. The evidence fully supports the father’s concession that the children are settled and secure living with their mother.  They thoroughly enjoy the time they spend with their father.  They love both their parents.  They are happy, and are doing well in every aspect of their school life as well.  That is supported by the Family Report and a recent update of that Report.

6. The mother denies that her friend “[T]” assaulted the son in the middle of 2005.  It is clear on the evidence that whatever did or did not occur, it was then the son’s desire to return to live with his mother and that remains his desire.  There is nothing to suggest that he has been or is facing any recent on-going issues or concerns in relation to his safety.  The father agrees that the son shares a close and trusting relationship with him and the son is not now complaining of any assaults.

7. Despite the litigation, despite the father’s very negative view of the children’s mother and his extensive criticisms of her parenting, and despite his frustrations about the court processes, the reality is that the children are doing very well.  They are thriving in their mother’s care, and are attached to both their parents.  Whatever opinions the parents hold about each other, they have succeeded in allowing the children to be free to love and respect the other parent.  That is to the credit of both of them. 

8. The evidence persuades me that the orders arrived at between the parties are in the children’s best interests.  The children will be able to enjoy a meaningful relationship with both parents.  A regime whereby they spend from Friday until Monday each second week with their father, as well as half school holidays, various special occasions, and other times as mutually agreed, reflects their wishes and consistently expressed views.  It gives them substantial time with him.  They will have the benefits of what each parent has to offer. 

9. There was extensive discussion before me about the detail of the orders.  The transcript will reflect those discussions.  I need not repeat them here.  One observation is relevant, given the heated nature of the particular issue.  I have included an order that neither parent use corporal punishment on the children, or allow that to occur.  That is not because of any finding that I would have made that it had in fact occurred in the past.  I could not be definitive about that.  It is that I hope the order will give peace of mind, particularly to the father.  In that regard I note that he still has intervention order proceedings on foot.  He instigated them on the son’s behalf in 2005 in the Children’s Court.  The proceedings were adjourned to a date to be fixed because the father did not know the proper name of “[T]” to serve him as the defendant.  As a result of the evidence in this case, his name is now known.  It is my strong hope that a combination of the hearing in this court, the father’s agreement to orders, and these brief reasons, will bring all litigation, including the intervention order proceedings, to an end.  It would be very sad for the children for there to be further litigation.  They will benefit most from their parents’ energy being directed towards their on-going needs, rather than any more court cases.

10. I am grateful that the ICL has drafted orders to reflect yesterday’s agreement.  I will now discuss that draft with the parties.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  2 August 2007