Stojanovski and Stojanovski

[2007] FamCA 615

FAMILY COURT OF AUSTRALIA

STOJANOVSKI & STOJANOVSKI [2007] FamCA 615

FAMILY LAW - CHILDREN – Less adversarial trial – First day – Directions – No order for supervision

HUSBAND: MR STOJANOVSKI

WIFE: MRS STOJANOVSKI

INDEPENDENT CHILDREN’S LAWYER: Independent children’s lawyer

FILE NUMBER: MLF 3496 of 2005

DATE DELIVERED: 15 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 June

REPRESENTATION

COUNSEL FOR THE HUSBAND: In person

COUNSEL FOR THE WIFE: Mr Bear

SOLICITOR FOR THE WIFE: Mahonys

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Sayer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: TJ Mulvany

Orders

IT IS ORDERED

1. That the further hearing of the applications for final parenting orders be adjourned to 10.00 am on 27 August 2007 before the Honourable Justice Brown, marked as a less adversarial trial continuation.

1. That pursuant to s.62G(2) of the Family Law Act1975, a family report be prepared and released by 21 August 2007.

1. That the independent children’s lawyer have leave to file and serve subpoenas directed to the following agencies and people, and without limiting the generality of each subpoena, the matters noted be included:

   (a)A Counselling, in respect of counselling of the children of the marriage;

   (b)W Medical Centre, in respect of the children’s attendances and medical records;

   (c)the crèche attended by the child M born … July 2002, including any records in respect of the parties’ conduct and demeanour;

   (d)the school attended by S born … June 1995 and A born … September 1997, including any records in respect of the parties’ conduct and demeanour;

   (e)N Child and Family Services, in respect of the husband’s attendances at anger management and other courses;

   (f)Children’s Protection Society, in respect of parenting and other courses or counselling attended by the husband;

   (g)Ms P, psychologist, in respect  of the wife’s attendances; and

   (h)the Department of Human Services.

2. That the current parenting  orders made herein be varied, as follows:

   (a)commencing on 20 June 2007, the father shall communicate by telephone with the children between 6.00 pm and 6.30 pm on a Wednesday, in lieu of a Thursday; and

   (b)the children shall spend time with the husband from 1.00 pm on 23 June 2007 until 10.00 am on 24 June 2007, with changeovers to be at the O Police Station;

3. That the report of Dr E dated 14 September 2006 be indexed on the court file.

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That either party have general liberty to apply, on notice to the other parties, by application to the associate to the Honourable Justice Brown.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

IT IS FURTHER ORDERED

1. 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.             

AND THE COURT NOTES

A.That the husband consents to the production of documents  pursuant to subpoenas addressed to A Counselling, W Medical Centre, the children’s creche, school and after school care service, N Child and Family Services, the Children’s Protection  Society and the Department of Human Services.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3496 of 2005

MR STOJANOVSKI

Husband

And

MRS STOJANOVSKI

Wife

REASONS FOR JUDGMENT

1. This matter has a long history.  The parties have three children who are now twelve, nine and on the cusp of five.  They separated in 2003 and have been involved in litigation since 2005.  Before the court is a family report prepared by Dr T, a psychologist, on 22 January 2006; that is now close to 18 months old.

2. In brief compass, the father's case is that the mother is a neglectful parent, susceptible to rages and physically violent to the children.  He alleged that the children are scared of her and that their welfare demands that they live with him.  Notwithstanding his characterisation of her parenting, he proposed they spend each second weekend, and some time after school during the week, with her, as well as holiday time.

3. The mother's case, broadly, is that while the children love their father and, indeed, are very aligned with him, they have been frightened by his aggression in the past and that his denigration of her has undermined her relationship with them.  She alleged that this continues, even though his contact with the children has been reduced.

4. When Dr T saw the family, the children were spending each second weekend with their father, plus a significant amount of time on the other Sunday.  They were with him two afternoons, after school, and orders provided for daily phone contact.  In Dr T’s opinion, this was excessive and unsettling.  No doubt influenced by Dr T's recommendations, the court then reduced the father’s contact, so the children could spend the whole of each alternate weekend with their mother.  Orders also provided for only one period of contact after school in each week.

5. Despite some concerns about the mother's child behaviour management strategies and the children's alliance with their father, Dr T's recommendation was that the children live with their mother and that the then contact arrangements be reduced.  He saw them as disruptive and adversely influencing the children's capacity to settle when with their mother.

6. It is clear that the father was distressed, not only at the recommendations but also at the contents of the report.  I make it absolutely clear a party’s unhappiness with an expert opinion does not mean the court would not order an update by the same professional.  Each case must be assessed on its merits.

7. The court has now been told that the children have been taken for counselling during times they are with the father, without their mother's consent.  That may well be in breach of their joint parental responsibility for these children; such counselling probably comes within the definition of major long‑term issues.  Nevertheless, the children have been seeing counsellors at A Counselling. 

8. The father has tendered papers about his own attendance at anger management courses run by N Child and Family Services, and about parenting and general assistance provided to him through the Children's Protection Society.  I have also been told that the mother has recently begun to see a psychologist herself.

9. Today I have been provided with a report of Dr E who saw both of the parties last year.  His report is dated 14 September 2006, and was provided to the lawyers in February 2007.  Its release was delayed as the father had not paid his share of the fee.  That report raises a number of matters of significant concern.  Dr E accepts that the earlier diagnosis (of which the father told him) of bipolar disorder is sound, and is impacting on the father.  His evidence is that the father has an untreated psychiatric disorder, likely to have been affected by periods of drug taking; Dr E is also concerned about the children being manipulated by the father.

10. The father does not accept Dr E’s report to be an accurate characterisation.  The father's living arrangements have changed again since he saw Dr E.  He was then living with a woman described as a 57-year-old nurse of “Christian persuasion”.  The father subsequently left her home in acrimonious circumstances.  He alleges she was dishonest and wanted to have a romantic relationship with him.  It appears she applied for an intervention order against him; from what he has told me today, she withdrew that application when the matter was at court.  No doubt further investigations can be made. The father is again living with his mother in a two-bedroom unit in H.  The children remain living with their mother in the W area, where they go to school and where the little one is at creche.

11. Dr E's view was that if, as the mother indicated, the children were being manipulated by their father and that was having a destructive effect on their relationship with her, some sanctions needed to be brought into the situation in order to preserve their best interests.  Pursuant to that recommendation, the mother's solicitor has sought that contact be supervised, pending final hearing.

12. I do not propose to make an order for supervised contact today.  First, I have doubts as to whether a contact centre would take children over this age range; a 12‑year‑old girl may well be outside the range of many contact centres.  More importantly, the evidence does not warrant such a drastic change at this time.  Nevertheless, the matter needs to be got on for trial.

13. I propose to order a family report, to be prepared by Ms H; I place weight on her evidence in coming to that decision.  I hope the case can be ready for trial later this year.

14. I will grant leave to the independent children's lawyer to issue subpoenas directed to A Counselling, the W Medical Centre, the children's school, crèche and aftercare service, N Child and Family Services, the Children's Protection Society and the psychologist consulted by the mother. 

15. In relation to the school, crèche and after school care, subpoena can relate to the parties’ conduct and demeanour, in addition to other matters.  I will note on the order that the father has told me he is comfortable with the court obtaining information from N Child and Family Services, the Children's Protection Society, DHS, A Counselling, W Medical Centre and the children’s schools, crèche and after school service.  To the extent necessary, he authorises the release of this material.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate: 

Date:  22 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as STOJANOVSKI & STOJANOVSKI