Starcevic and Tomasi

[2011] FamCA 993

FAMILY COURT OF AUSTRALIA

STARCEVIC & TOMASI [2011] FamCA 993

FAMILY LAW – PARENTING

APPLICANT: Ms Tomasi

RESPONDENT: Mr Starcevic

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Penrith

FILE NUMBER: PAC 3660 of 2007

DATE DELIVERED: 21 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 6 December 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Starcevic in person

COUNSEL FOR THE RESPONDENT: Mr Hill

SOLICITOR FOR THE RESPONDENT: Ms Beach
Adams & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shorter

Orders

1. That all previous orders in relation to the children:

   B born on … 1998   and

   C born on … 1999

   (“the children”) are discharged.

2. That the mother has sole parental responsibility for the children.

3. That the children live with the mother.

4. That the mother forthwith:

   4.1advise the father if either child suffers from a serious and/or life-threatening accident or medical condition

   4.2provide to the father sufficient information such that he is fully aware of the nature of the child’s condition, hospitalisation and treatment.

5. That the mother is restrained from directing, encouraging or allowing the children to refer to any person other than the father as “dad”, “their father” and similar terms or permitting any other person to do so.

6. That the father is authorised to obtain:

   6.1any information which he requests from the principal and/or teachers of schools which the children attend from time to time

   6.2      copies of the children’s school reports and photographs; and

   6.3any information which he may request from the children’s treating health professionals from time to time.

7. That the mother provide the children’s email address to the father within 7 days of the date of these orders and advise him within 7 days of any change to that email address, for the purpose of the father communicating with the children.

8. That the father notify the mother within 7 days of any change to his mobile telephone number.

9. That the mother notify the father within 7 days of any change to her email address.

10. That the mother:

    10.1inform the father within 7 days of the schools to be attended by the children in 2012

    10.2inform the father within 7 days of any change to the school attended by either child

    10.3inform the father within 7 days of the names of the children’s treating health professionals

    10.4inform the father within 7 days of any change in the children’s treating health professionals

    10.5inform the father within 7 days of the sporting and extracurricular activities to be pursued by the children from time to time.

11. That the mother keep the children informed at all times of the father’s residential and email addresses and his mobile and landline telephone numbers.

12. That the mother use her best endeavours to facilitate all and any contact which each child wishes to make with the father.

13. That the mother provide to the father one photograph of each child per year in a method which she selects from time to time.

14. That the father is restrained from utilising the provision of photographs by the mother in accordance with order 13 to attempt in any way to communicate with the mother and/or the children.

15. 15.1    That the father is at liberty to post birthday and Christmas gifts to the children at Suburb D Post Office and he will advise the mother by email that he has forwarded such gifts.

    15.2That the mother cause such gifts to be collected and advise the father by email that the children have received such gifts.

16. 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.

17. That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment under the pseudonym Starcevic & Tomasi 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 SYDNEY

FILE NUMBER: PAC 3660 of 2007

Mr Starcevic

Applicant

And

Ms Tomasi

Respondent

REASONS FOR JUDGMENT

the proceedings

1. Mr Starcevic and Ms Tomasi are the parents of two children:

   B born in 1998 (almost 14)     and

   C born in 1999 (13).

   Primarily, these proceedings concern primarily the manner in which the children will communicate with the father.  It was agreed that they will live with the mother and that she have sole parental responsibility, although the father sought that he participate in major decisions relating to the children’s welfare.

2. The Independent Children’s Lawyer (‘ICL’) and the mother proposed that there be no face-to-face contact between the children and the father.  He sought only that he be permitted to attend their sporting events, where he would “watch from a distance”.  He said, however, that he would “not push that point”.  

3. These proceedings have been protracted because a number of attempts have been made, by way of interim orders, to re-establish the relationship between the children and the father.  On 9 October 2008 the father indicated that he accepted that court intervention would not assist in repairing his relationship with B.  Interim orders in relation to the parties’ daughter were thus discharged by consent.  All subsequent interim orders related only to C. 

4. The proceedings were listed as a reserve trial matter on 6 and 7 December 2011 by which time the issues had narrowed very substantially.  The ICL and the mother presented a common proposal and all parties agreed to finalise the proceedings by way of submissions only.

Background

1. The father, who is now 37, and the mother, currently 35 years of age, met in 1993 and began to live together in that year or 1994.  Their relationship was characterised by periods of separation and ultimately broke down completely in 1999 or 2000.

2. The children stayed with the mother after separation and have always lived with her.  On 8 February 2002 the parties consented to orders in the Federal Magistrates Court which provided that the children live with the mother and spend alternate weekends, special occasions and half of all school holidays with the father.

3. The parties gave differing accounts of the time which the children spent with the father following the orders of 8 February 2002.  According to the mother, he saw them on only six or seven occasions each year by his own choice.  The father’s version of events was that he saw the children in accordance with the orders and at additional times by agreement with the mother until about mid-2006.  He alleged that, from this time, she began unilaterally to reduce the children’s time with him.

4. The mother alleged a history of violence and abuse directed at her by the father during and subsequent to their relationship.  She alleged that on two occasions in 2006 he displayed anger toward the children and shouted at them.  Further, she alleged that he came to her home twice in 2007 and shouted abuse at her when the children refused to go with him.  The mother also alleged that the father attended at her home on 17 December 2009 and abused her partner in most unsavoury terms.

5. Largely, the father denied the mother’s allegations of unacceptable behaviour on his part.  Because of the way in which the proceedings were conducted, these allegations were never tested by way of cross-examination.

6. Early in 2005 the mother began a relationship with Mr E, who is 37 years old and works as a freight train driver.  They have a son F, who is now five, and a daughter G, who is four years old.  Their relationship is presently under strain but the mother hopes that they will reconcile when these proceedings are finalised.

7. Unfortunately, C suffers from Landau-Kleffner syndrome which was diagnosed in 2005.  This condition causes him to suffer from epileptic type seizures for which he takes regular medication.  C also suffers from attention deficit disorder and has serious learning disabilities.

8. C’s paediatrician, Dr H, provided a report dated 6 June 2011.  He expressed these opinions as to C’s condition and prognosis: 

   [C] has continuing problems and will need a lot of ongoing support, supervision and care over the rest of his life.  I do not feel he is capable of looking after himself, certainly not for the next ten years and he will need a carer.  His epilepsy as mentioned earlier is currently well controlled however he will need to continue preventative medication for at least ten years on a twice daily basis.  There is around a 40 per cent chance that he may outgrow the epilepsy after a further ten years.

   With [C’s] learning disability it is extremely unlikely that he will progress further than year ten.  I do not think that he will achieve a Year 10 School Certificate.  [C] will need to continue some form of medication (currently Concerta) while he does remain at school to help with his concentration and learning.  [C] has impaired fine motor activity due to his forearm restriction of movement and this will affect his ability to work.  I feel the most likely outcome is that [C] will drop out of school before completing year ten and he would be unlikely to find employment.  In terms of life expectancy [C] should have a normal life expectancy.

9. B last saw her father in 2007 when he attended the mother’s home and the children refused to go with him.  C has spent no time with his father since 2009, when an attempt to utilise a contact centre proved to be unsuccessful. 

Approach To These Proceedings

1. As noted, the parties and the ICL agreed that the mother will have sole parental responsibility, subject to the father’s request to participate in major decisions in relation to the children’s welfare.   The father told me:  “I have no real issue with [Ms Tomasi] having sole parental responsibility but I think that as a father I should have input into major decision making eg serious injury treatments”.

2. The proposal of the mother and the ICL would see the father informed of “any serious and/or life threatening medical emergency suffered by or related to the children” and that he be provided with full details of diagnosis, hospitalisation and treatment.  It is obvious that there is an extremely high level of conflict between these parties, as appears from the Family Report to which I refer below.  I can see no prospect that they could confer civilly and agree upon an approach to serious issues involving the children’s welfare. 

3. I do not doubt that the father has a genuine wish to participate in these decisions.  The reality of the current situation, however, is that an order as sought by the father would almost certainly lead to conflict between the parents.  Of course, the father has the right to approach the court if he is seriously concerned about a major issue relating to the children’s welfare. 

4. That being so, there will not be an order for equal shared parental responsibility. I am thus relieved of the obligation to consider whether the children should spend equal or substantial and significant time with each parent. I am liberty to proceed to determine what orders are in the children’s best interests by reference, inter alia, to section 60CC of the Family Law Act.

Consideration

1. The ICL and the mother sought the following orders: 

   1.        That all previous orders are discharged.

   2.That the children [B] born … 1998 and [C] born … 1999 live with the mother.

   3.That the mother has sole parental responsibility for the children.

   4.That the mother be restrained from directing the children to refer to any other person with whom she resides with as ‘their father’, ‘dad’ or by any similar term.

   5.That these orders are authority for the father to obtain written or oral information from any school the children attend including school reports and from any health professional in relation to the treatment of the children.

   6.That within 7 days of the making of these orders or any change in relation to the children’s e-mail address, the mother must provide the same to the father for the purpose of his communicating with the children.

   7.That the father is restrained from contacting or communicating with the children except as otherwise provided for in these orders.

   8.That the father notify the mother within 7 days of any change to his mobile telephone numbers and the mother notify the father within 7 days of any change to her email address.

   9.That the mother notify the father within 7 days of any change to the children’s school enrolment and their health professionals.

   10.That the mother keep the children informed of the contact details of the father as provided to her from time to time, including his residential and email address, his landline and mobile telephone numbers.

   11.That the mother must facilitate the children communicating with the father by email and telephone in accordance with the children’s express wishes.

   12.The mother must forthwith and contemporaneous with the event, advise the father of any serious and/or life threatening medical emergency suffered by or related to the children, and including sufficient details to enable both parents to be fully advised regarding significant illnesses or hospitalisation and treatment provided.

   13.That the father may post birthday and Christmas gifts for the children to Suburb D Post Office and upon notification by email to the mother and the children the mother must collect them and give them to the children.

2. The father sought the following additional orders: 

   1.The father knows where the children live.

   2.The father is authorised to attend such events at a school at which the children attend to which parents are invited or permitted to attend.

   3.The father receives a copy of the school photos of the children.

   4.The father receives a copy each year of the children taken on or about their birthday.

   5.The father is notified if the child is absent from school for more than two days.

   6.The mother provide to the father the following details of all sport that the children participate in that is not through their school including but not limited to:

   6.1      the club that the child is enrolled with

   6.2      the team the child is in

   6.3the address and phone number of the coach and manager of the team

   6.4      details of the draw for the season

   6.5details of all presentation days including time and place where the sport is not a team the details of where and when the child participates in the sport.

   7.That the father is permitted to attend any place at which the children are playing sport of training for sport for the purposes of observing them play sport or train for sport.

3. Regrettably it could not be said that the children presently have a meaningful relationship with their father, despite various court attempts to rectify that situation.  In her report of 1 July 2011 the Family Consultant summarised her assessment of the current situation as follows: 

   Regardless of which parent was at fault, both children have been seriously affected by the parents’ conflict with court orders hovering.  [B] has not spent time with [Mr Starcevic] for over three years.  In her interview, she strongly objected to her father being able to access detailed information about her.  Her solutions to such orders were drastic.  She said she would leave home and leave school, if the court made such orders.  In his interview, [C] was uncomfortable with talking about his father and said he could not remember even the times at the contact centre.  He appeared to distance himself from why he did not like to spend time with his father by saying that he did not like his father hurting [Ms I] and her son.  The fact the staff at the contact centre stop (sic) the supervised time between [C] and his father was an indication of the irretrievable nature of the relationship between [Mr Starcevic] and his children.

4. B expressed to the Family Consultant very strong views against seeing her father or his being in possession of information about her.  The Family Consultant reported as follows: 

   …[B] was visibly distressed when she talked about her father.  She was adamant that she did not want him to know about her; where she lived, where she went to school etc.  [B] wanted her father to have no contact with her school or to obtain information about her from the school.  She said, ‘If my father knew what school I go to I won’t go to school any more…If my father knew my address where I live, I would move out’.

   [B] said that she was scared of her father.  She reported that her father was abusive towards her mother and that she witnessed [Mr Starcevic] bashed his girlfriend, [Ms I].  [B] perceived that her father was not really interested in them.  She asserted that a lot of the time when she used to go with her father, he took them to his sister’s home and went out and that he would pick them up the next day to take them home.

   [B] insisted that she did not want her father to know what she looked like and she did not want to receive his phone calls.  She did not want him to have her email address because she did not want to read his emails.  [B] said that she wanted nothing from [Mr Starcevic].  She recalled that in December 2009, when her father came to their house he had an argument with [Ms Tomasi’s] partner, [Mr E], and tried to get into their house.  [B] said [Mr Starcevic] was angry and threatening the police was called.  She said he only left after the police came.  She said, ‘I can’t take it anymore.  I don’t want anything to do with ([Mr Starcevic]).

5. The Family Consultant reported that C “was reluctant to talk about his father”.  He told her that he did not remember when he last saw his father or what had occurred at the contact centre.

6. The mother strongly opposed the additional orders sought by the father and his proposal was unsupported by the ICL.  She refused to provide her address to the father because she alleged that he has attended her home and behaved aggressively to herself, her partner and the children in the past.  She asserted that he purchased vacant land next door to their home in 2007, which caused them to move to different premises.  These allegations were untested.   As noted, B expressed to the Family Consultant a very strong wish that her father not be in possession of her address. 

7. I appreciate that the father would like to know where the children live from time to time.  I understand that it could be that B’s wish for her father not to know her address could be influenced to some extent by the mother.  The reality is that B’s strong view is coupled with threats of drastic action which, if implemented, could be very detrimental to her safety and best interests.  I simply cannot take that risk and accede to the father’s request.

8. The father asked that he receive photos of the children.  The mother claimed that the children once refused to pose for school photos when the discovered that the father had obtained copies.  As noted, B told the Family Consultant that she “did not want her father to know what she looked like”. 

9. The orders proposed by the mother and the ICL would result in the father being aware of the schools attended by the children from time to time.  There is thus no difficulty in that regard if the father receives copies of school photos.

10. The mother could provide to the father photos of the children without informing them that she has done so.  Alternatively, he could obtain these photos directly from the children’s schools.  The latter course seems preferable and I will so order.  It seems to me that provision of photos of the children to the father would assist in keeping the channels of communication open, at their option.  I will also order that the mother provide to the father one photo of each child per year, in a manner which she will select.  The father will be restrained from making any attempt to utilise the provision of these photos as a means of communicating with the mother or the children.

1. The father wished to attend parent-teacher evenings at the children’s schools, pointing out that they would not be present.  In my view, a problem with this proposal is that the mother and father could well attend these events at the same time.  They do not seem to be able to desist from engaging in altercations and could well do so at a parent-teacher evening.  In my opinion, there is a likelihood of real embarrassment to the children in that event.  Ultimately, the test is their best interests and their welfare must prevail over all other considerations.

2. The father sought that he receive notification if the children are absent from school for more than two days.  He did not indicate what he proposed to do upon receipt of such information.  He will receive information about the children’s school attendance by way of their reports in any event.  I will not make this order.

3. The father sought information about the children’s sporting commitments but, as noted, he did not press his application for permission to attend their matches and training.  The mother alleged that both children stopped playing sport after the father behaved embarrassingly at their matches.  Again, these allegations were untested.

4. I would regard the provision of information about the children’s sporting interests and commitments as another means of keeping open the channels of communication between the children and the father, at their option.  He would have a picture of their physical appearance via the photos and their academic progress, medical status and leisure pursuits by way of information provided pursuant to court orders.  There would thus be some common knowledge as a basis for communication, in the event that the children elect to contact the father.  Lest there be any doubt, I will restrain the father from attending any of the children’s sporting fixtures or contacting any person involved with these activities.

5. The mother should understand clearly that she is bound by these orders.  It is not for her to decide whether or not to comply with the orders of the court.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on December 2011.

Associate:     

Date:              21 December 2011