Stracchi and Anello

[2007] FamCA 690

FAMILY COURT OF AUSTRALIA

STRACCHI & ANELLO [2007] FamCA 690

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Interim orders

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286; (2007) 36 Fam LR 422

APPLICANT: MS STRACCHI

RESPONDENT: MR ANELLO

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6801 of 2007

DATE DELIVERED: 25 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lesley

SOLICITOR FOR THE APPLICANT: Women’s Legal Service Victoria

COUNSEL FOR THE RESPONDENT: Ms S.S. Buchanan

SOLICITOR FOR THE RESPONDENT: Peter Lynch

Orders

1. The further hearing of all outstanding applications be adjourned to 9.45 am on 19 July 2007 in the Senior Registrar's list of cases.

2. Until further order the children will be with their father.

3. Until further order, the children will spend time with their mother, from 9 am to 6 pm on Saturday, 30 June 2007; from 9 am, Friday, 6 July 2007, to 6 pm on Sunday, 8 July 2007; from 9 am on Wednesday, 11 July 2007 to 9 am, Saturday, 15 July 2007. 

4. Between now and 19 July 2007, the mother is to reside with her parents, subject to any decision by the parents to the contrary.  In the event that the mother leaves the residence of her parents or is no longer welcome there, the terms of paragraph 3 of these orders are suspended until further order.

5. For the purposes of all travel, the paternal grandfather is to deliver the children to the maternal grandfather at 9 am on Saturday, 30 June 2007, and the maternal grandfather is to return the children at 6 pm on 30 June 2007.

6. At 9 am on 6 July 2007, the maternal grandfather is to collect the children from the father's residence and the paternal grandfather is to collect the children in return at 6 pm on 8 July 2007.

7. At 9 am on 11 July 2007, the maternal grandfather is to collect the children from the father and at 9 am on 14 July 2007, the paternal grandfather is to collect the children from the maternal grandfather.

8. I make the usual orders for the appointment of an independent children's lawyer.

9. I make orders that each party undergo supervised drug screenings on each week between now and 19 July 2007 on at least one occasion and provide the screening results to the other parent.

10. Until further order, the mother is not to attend at the school currently attended by the children.

11. Until further order the father is directed to authorise the principal of the children's school to make available by telephone any information sought by the mother about the welfare of the children.

12. I make the usual orders under s 65DA(2) and s 62B.

13. I certify for the attendance of counsel.

14. The mother file and serve any further material upon which she intends to rely by 4 pm on 13 July 2007 and the father file and serve any further material on which he intends to rely by 4 pm on 18 July 2007.

15. I order that my reasons this day be transcribed and copies be made available to the parties, including any independent children's lawyer appointed prior to 19 July 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6801 of 2007

MS STRACCHI

Applicant

And

MR ANELLO

Respondent

REASONS FOR JUDGMENT

1. This is a matter that has come to me in the duty list today, in which the parties are seeking competing residence orders.  The proceedings commenced with the mother filing an application on 15 June 2007, initially seeking that it be dealt with on an ex parte basis and that it be listed with some urgency.  Most important of all was she sought a recovery order in respect of these two children.

2. The application is opposed and the father has filed a response today in which he also seeks that the children live with him.  If ever there was a case in which the stories are diametrically opposed as to what has happened, not only in the children's lives but in their parents' lives over the last year or so, it is this.

3. The mother filed an affidavit in which she says that the parties commenced their relationship in 1992 and finally separated in 2001.  One would have thought that with an assertion like that, it would not be controversial, but when I look at the father's affidavit in reply, he says that the relationship was a de facto relationship and it subsisted until 27 May 2007.  Someone has to be wrong. 

4. I am assisted distinctly in this case by the fact that the paternal grandfather has, on behalf of the father, filed an affidavit.  He disputes the mother's version.  He says that he ought to know about some of these things because the parties lived with him for quite some considerable period of time and the father and the children are still living with him.

5. The children are a son, who was born in July 1995, and who is therefore coming up to 12 years of age.  It is quite clear that he will have some say in these proceedings but at the moment I have no indication of what his views are about any of this.  The second child is a daughter, who was born in March 2001.  Obviously, the daughter is now just aged six.  The 2001 date is interesting because that is the time the mother says that the parties separated.

6. In this case, there are, as I said, many disputed facts and I am not in a position to make any findings about any of them because virtually all of them are controversial.  However, the interesting fact that I have been convinced to make my determination on is the fact that when the mother said that at the end of May, she left the premises, it was to go to a pharmacist and that she was away for some time and upon her return, she found that the respondent father had gone and so were the children.  In addition to that, she could not find her house key or mobile phone and believed that he had taken them.  The bizarre feature of that particular assertion is that she was living with the father's own father at that time, but there is very little mention of what his views were at that particular moment.

7. The father then asserts that the mother left on 27 May for her own purposes but what seems to be common ground thereafter was that the mother did not see the children for the best part of a week.  The father's version is that in the first week of July, he came across the mother, who he believed was affected by drugs and that she indicated she was too busy to see the children.  That flies in the face of the mother's version of her endeavours to find out what was going on with the children by speaking to the police and the father's sister and also the school.

8. I am unable to find any material upon which I could safely make any finding about either party.  What permeates this whole case is an assertion by each party which does not seem to be disputed, that each of them has used illicit drugs throughout the relationship.  There is a considerable dispute about what has happened recently and each points the finger at the other and says that notwithstanding their endeavours to break the cycle of drug abuse, each was back on it.  Again I am not able to make any finding about any of those issues but I have made my views very clear that I am very concerned that these children are being cared for by people whose interests are more on their own problems than on the problems of their children.

9. The problems are compounded in this case by the fact that the mother is now living with her parents, and there seems some common ground here as well, that during at least the last 12 months of these children's lives, they not only did not see anything of their maternal grandparents but there was some antipathy between probably both parents and the maternal grandparents.  Hopefully, what they have heard today will bury the hatchet in respect of some of those things because as I have indicated in discussion with counsel during the proceedings, I am relying very heavily upon the grandparents on both sides to take some responsibility and protect these children.

10. The mother's position today was that I should make an order for a week-about arrangement and then bring the proceedings back after the appointment of an independent children's lawyer.  Having regard to the fact that the mother has not seen the children for some weeks, has left the home in which the children were living, has left the paternal grandfather and there are drug accusations on both sides, I could not possibly justify an order for a week-about arrangement based on the premise of what is in the best interests of the children.

11. The father, for his part, wanted me to make an order that the mother have the children effectively on each alternate weekend under the supervision of the maternal grandparents.  Equally, I am not prepared to do that, having regard to the fact that the children have not seen their mother for some weeks and neither party has really told me what sort of a relationship these children have with each of them.  It seems to me, having regard to the very young age of the daughter, it would be totally inappropriate to have a further break of two weeks in between each period of time that she spends with her mother.  Accordingly, I would not be prepared to do that.

12. Having regard to the fact that I have huge difficulties understanding who to believe in this case and in circumstances where there are serious drug accusations against each party and I do not have the benefit of either an Independent Children's Lawyer, nor do I have any drug screenings, it seems sensible for me to adjourn the proceedings for the shortest possible time and try and remedy those deficiencies.  It is for that reason that I propose to make the orders that I have in mind.

13. Before turning to those orders, however, I am obliged under the legislation to start with the presumption that parents have the responsibility for making decisions about their children until the Court determines otherwise.  The Full Court in Goode and Goode (2006) FLC 93-286; (2007) 36 Fam LR 422 made it very clear that the legislation requires me to look at the presumption of equal shared parental responsibility, and if I am in a position to make findings, I should do, and if I can, make those findings based upon either family violence or on the best interests of the children principle, then I am in a position to rebut the presumption.

14. Each party in this case makes an accusation against the other of family violence.  I am not in a position to make any finding at all about that.  One of the other matters that rebuts the presumption of course is the failure to protect the children and in this case, I have some serious doubts, but I am not prepared on the material to make a decision to effectively rebut the presumption based upon what I have described in the past as the first leg of the two legs.

15. However, the second of the two issues associated with the equal shared parental responsibility presumption is in s 61DA(4) and that allows me to rebut the presumption if the responsibility would conflict with the best interests of the children.  In this case, I have little doubt that neither party has a clean record in respect of the care of these children and in my view, it is totally inappropriate for me to make an order at this stage, giving the parties equal parental responsibility.  This is a case where, on the best interests of the children principle, I would rebut the presumption.

16. Having rebutted the presumption, I still have to make a decision which is in the best interests of the child and the law requires that I turn to s 60CC.  Before going through that check list, however, s 60CC(4) requires me to look at what each party has done subsequent to separation.  Part of the problem I have with this case is that I do not know when separation occurred, having regard to the diametrically opposed versions of the parties.  However, it seems pretty clear that the cessation of whatever relationship it was occurred some time around the end of May.  On that basis, I am obliged to look at what each party has done to participate in the lives of these children but facilitate the other party having time with the children subsequent to separation.

17. It seems to me on the material, notwithstanding that it is disputed, that the father has done very little in the last few weeks to facilitate the time that the children have spent with their mother, and equally the mother has done very little to get the ball rolling at a time when it was critical that she should do so.  On that basis, if I was to make any determination based on s 60CC(4), I would be critical of both parents.

18. If I look at the factors set out in s 60CC(3), I have to determine the interests of the children based upon all of those matters.  In this case, I do not have any evidence about the views of the children.  So in respect of those matters, I am going to await the views of the Independent Children's Lawyer.  I am obliged to look at the nature of the relationship of the children with each of the child's parents as well as other parents, including grandparents. 

19. In this case, the grandparents, as I have said, on one side seem to have had a significant role in the life of these children and the other grandparents have not, but to their credit, the maternal grandparents today have put their hand up and said they are prepared to participate, in the sense of at least doing driving for the children to ensure that they have a relationship with their mother.  I was not prepared to put them in the invidious position of having to supervise it because that would already strain the relationship with the mother.

20. However, in respect of the relationship between the parents themselves and the two children, I am unable to make any firm conclusion on the evidence as to exactly what sort of a relationship it is, and notwithstanding the fact that the mother asserts that she has been the primary carer of these children, I am unable to make that finding.

21. I have already made comment about the willingness of the parents to facilitate a relationship and for my part, in making a final decision, if I had to, I would look very carefully at the willingness and ability of each of the parents to facilitate and encourage the relationship between the children and the other parent.  If that problem is exacerbated by drugs, then the message ought to be loud and clear to the parents that they have got to get their priorities right.

22. There are other matters in s 60CC(3)(d), (e) and (g) that I do not take into account because there is no evidence before me.  However, in respect of the capacity of each of the parents to provide for the needs of the children, I have a serious concern in this case that each parent is pointing the finger at the other, saying that that other parent is running a lifestyle affected by drugs, and to that extent, it is difficult to determine just who has the capacity to care for these children.  If it turns out that both parents have led a lifestyle affected by drugs, it may very well be that neither is the appropriate person to care for these children, but that is a matter that I would want some more evidence on, at least for the next hearing and if not, for the final trial.

23. The other matters that I am obliged to take into account are family violence and family violence orders.  I am not going to make any findings about family violence in this case and I note that there is a family violence application before the local Magistrates Court in August.  Hopefully the parties can see some reason and sort this matter out before it goes that far.

24. As for the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents, I have already made comment about my concern about the fact that the mother left the children for some days before starting the ball rolling, but equally I am concerned that the father has done very little to ensure that the mother has remained a significant part in these children's lives.

25. It is mainly for those reasons that I think it appropriate in the circumstances today to have a build-up of the relationship in which the mother will now have some involvement with the children on a day-by-day basis over the ensuing two-week holiday period which begins at the end of this week.  I am not prepared to disrupt the children's schooling this week, nor am I prepared to disrupt it in the week after school resumes and as a result, I am intent on making the period of time primarily revolving around the school holiday period when the mother should have some time to spend with the children.

26. As for the build-up, however, I think that it is important that the children are not just thrust into a position where they go back to the relationship with their mother that I do not know about and they will be living with the maternal grandparents in circumstances where they have not had any contact with them for over a year. 

I certify that the preceding Twenty Six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 July 2007

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