Vadisanis and Vadisanis (No 2)

[2009] FamCA 1169

FAMILY COURT OF AUSTRALIA

VADISANIS & VADISANIS (NO. 2) [2009] FamCA 1169

FAMILY LAW – CHILDREN – Suspension of orders

APPLICANT: Ms Vadisanis

RESPONDENT: Mr Vadisanis

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 6377 of 2008

DATE DELIVERED: 5 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 5 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Piggott

SOLICITOR FOR THE APPLICANT: Campbell Paton & Taylor

COUNSEL FOR THE RESPONDENT: Ms Manolakos

SOLICITOR FOR THE RESPONDENT: C M Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Solimon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

1. That the children R born … June 1999 and M born … March 1998 (“the children”) shall be handed to the mother forthwith at the conclusion of today’s proceedings.

2. That Mr L, family consultant conduct the handover and explain to the children the Orders made this day.

3. That the operation of Orders 5, 6 and 7 made on 4 August 2009 are suspended until further order and until after I receive a report from a psychiatrist appointed as a court expert to report on the following:

   (a)the safety of the children whilst in the care of the father in the event that he fails in his quest for residence;  and

   (b)on the relevant psychological condition of the father and his ability to change, if any change is needed.

4. That upon completion of the expert report, it is to be forwarded to me forthwith for release to the parties and that arrangements are to be made for the re-listing of these proceedings before me after seven (7) days from the date of release of the expert report.

5. That the proceedings are stood over to a date to be fixed being a date after the release of the expert report.

6. That the father pay the fees of the court appointed expert.

7. That in the event the parties and the independent children’s lawyer agree on the identity of the psychiatrist for the purpose of providing an expert report referred to herein that that psychiatrist is hereby appointed as the court expert.

8. That in the event the parties fail to agree as provided for in Order 7 within one (1) week from today, each party is to provide to me the names of three (3) psychiatrists who can provide such report, their curriculum vitae, and the time each estimates it will take to provide the report.

9. That the proceedings are stood over to 10.00am, 12 August 2009 before me for the purpose of compliance with Orders 7 and 8 and any further directions, if necessary.

IT IS NOTED that publication of this judgment under the pseudonym Vadisanis & Vadisanis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6377 of 2008

MS VADISANIS

Applicant

And

MR VADISANIS

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, at 2.15pm yesterday I made orders.  The orders were essentially to transfer residence of the two children who are the subject of the orders, to the wife from the husband pending final hearing.  I gave the husband relatively limited contact with the children.  In coming to my decision, I considered all of the matters which have to be considered pursuant to the Act and in particular sections 60B, 61DA, 60CA, 65DAA and 60CC.  The principal reason for my decision was that Dr B had concluded that the husband was acting in a way which made it appear that there was substantial risk that he would alienate the children from the wife in the event that he had the children living principally with him.  Those being interim proceedings, I could not come to any conclusion about whether he would do that.  I had to weigh the risk that he would do so with his criticisms of the wife and the risks inherent in both being true, and came to the conclusion that the bigger risk was to leave the children in the principal care of the husband.  Unfortunately, because of the nature of the case, I could not deliver my reserve judgment at 2.15 yesterday and the parties do not know my reasons.

2. On making the orders I did not bear in mind, and did not allow my observations to affect me, what I had seen of the husband’s behaviour in court during the hearing.  That behaviour had caused me considerable concern because of its inappropriateness and the indication that he did not really appreciate what counsel were saying, why they were saying it and his obligations as a parent, and had little insight and less self-control.  I did bear in mind in delivering my judgment that Dr B had said that the husband was unwittingly, in his opinion, likely to turn the children away from, or alienate them from, the wife.  In coming to my conclusions I bore that in mind, particularly because the risk of doing so would be greater because it was unwitting and based upon lack of insight.  After all, if one does something knowingly and deliberately, one is capable of changing if one is of a mind to do so.  But if it is being done unwittingly, one is doing it subconsciously and, therefore, without the capacity to change that behaviour.  The risk is greater in the latter event.

3. Nevertheless, after I had made my orders, because I was concerned about the husband and was very concerned that problems would occur at the handover which I ordered to take place after school this coming Friday, I warned the husband that there should be no incident and that that should go off smoothly, in the hope the husband would learn from, and take heed of, the warning.

4. Today, the independent children’s lawyer, Ms Solimon, contacted the Court and asked me to list this matter urgently.  I had it listed at 3.30, a time when I knew both the husband and the wife could attend, even though the wife had to fly from E in regional New South Wales.  When the matter commenced, Ms Solimon told me the reason why she had asked for such an urgent listing.  She told me that yesterday she had made arrangements with the husband’s solicitor for the husband to have the children collected and brought to her office so she could explain to them my orders.

5. The children were taken from school to the husband’s mother’s home by a relative and the husband went there to bring them to Ms Solimon’s office.  He went there, knowing that Ms Solimon wanted to speak to the children to explain to the children the orders in a way that would least upset them and best prepare them for the change.  He says that when he collected the children they were waiting to find out what orders were made.  They could only have been waiting if they had been told that orders were going to be made on Tuesday afternoon.

6. He said in evidence today that the mother could have told them on the weekend, but did not seem to resile from the fact that he did tell them.  He certainly indicated in the clearest possible way in his evidence in court today that the children knew about the proceedings on Friday and were expecting the decision then, and that they knew before they went to school last Friday, something they must have known from the husband.

7. In the light of allegations that these children have been made privy to the dispute between the parties and, on any reading of all of the relevant allegations if they are accepted, the husband has played a much more active role than the wife.  Although the wife is not without blame, one could fairly conclude that, to a large degree, the husband has been extremely active in involvement of the children in these proceedings, a fact which is supported by Dr B’s opinion, although as I have said, at this stage I cannot find as matters of fact the facts upon which that opinion is based.  But, on the probabilities of what the findings will be, there is consistency.

8. What the husband says happened is that the children rushed out to him when he collected them yesterday afternoon and asked him what the result would be and he told them.  He told them, knowing that they were to be taken to their own lawyer; a lawyer who has been appointed as a result of statute for the sole purpose of assisting and protecting the children.  To do so in those circumstances is an indication of an inability to control himself and a lack of insight into the needs of the children, as well as an inability to distinguish his own needs from those of the children.

9. Ms Solimon has told me from the bar table - and I have absolutely no reason to think that anything she has said is other than precisely accurate, as she is a solicitor and an officer of this court and from my own experience of her I am able to say that she is a person who has standing in this court - that she was so concerned about the level of disturbance of the children that she was of the view that the matter should be dealt with urgently today.  Among other things, she told me that the older child, M, who is aged about 11, had expressed a wish to die or kill herself; sadly, a common manifestation of the psychological disturbance of children who are caught up in their parents’ dispute over them and blame themselves for it; blame their very existence for it.  That is why they wish to die.  Because then, no longer existing, they, in a childlike way, believe that that will take away the cause of the dispute and therefore end the dispute that is making their parents so sad and unhappy.

10. I am of the view that in these circumstances, and on taking account of the observations that I have made of the husband and my fears about his behaviour at the time of making the orders, and taking into account all of the findings that I have considered in making my orders of yesterday, and the law that I will mention in the judgment and have already considered resulting in those orders, that the children ought to be placed in a position where they are not at risk.  The only way I can safely do that is by suspending contact with the father until such time as I have a psychiatric report into his parental ability and the children’s safety in his hands in the event that he does not succeed in these proceedings, either in the interim, or ultimately.

11. I am quite concerned by what I have seen of his behaviour and attitudes, and I mean by that, concern for the actual safety of the children.  In my view, even a small concern warrants suspending contact in the circumstances.  The husband appears to me to be the type of person who might regard himself as entitled to have the children in his primary care and think that, if he can’t have them nobody else can.

12. I also, of course, think that it is necessary to put forward the handover to immediately.  The children are present in the Court precincts.  Mr L, an extremely competent Family Consultant, has them in his care and I understand that he is in the position to supervise the handover of the children to their mother, and to explain to them, in a way that will do least harm, that that is going to happen.  To postpone the handover until tomorrow or Friday or any other time, in my opinion, involves unnecessary risk to those children, and certainly, will simply prolong the stress they will have before being handed over to their mother and increase the time before they settle down in her care.

13. So the orders I should make are:  that the children be handed over to the mother forthwith at the end of today’s proceedings;  that Mr L conduct that handover and say to the children whatever he sees fit to promote their welfare; and that the orders that were made by me at 2.15pm yesterday be suspended until further order by me, which is to be after I receive a report from a psychiatrist appointed as a court expert to report on the safety of the children at the hands of the father in the event that the father fails at any time or ultimately in these proceedings in his quest for residence, and on the relevant psychological condition of the father, as well as his ability to change, if any change is needed.

14. What I shall order is that such report, when it is completed, be sent forthwith to me for release to the parties, and on it being obtained, I shall, within seven days of releasing that report, relist the matter for mention before me, and with the possibility of a short hearing.  So, I shall order that the matter be stood over before me to a date to be fixed after the release by the Court of the report, to be provided by the Court Expert on the husband’s condition and the other matters that I have referred to.

15. The husband is not poorly off, from my understanding of the evidence about the parties’ claims as to their financial circumstances, and the wife is in a lesser position, she being employed as a nurse.  In those circumstances, the husband should pay the fees of the Court Expert, and I shall order that in the event that the parties and the independent children’s lawyer agree on the identity of a court expert for the purposes of providing the report that I have referred to, that that doctor is hereby appointed as such expert.

16. In the event that the parties fail to agree within one week of today, each party is to provide me with the names of three family psychiatrists who can provide a report on the condition of the father, an adult, the CV of that expert, and the time that he or she estimates it will take to provide such a report.

17. I shall stand the matter over until 10 o’clock on Wednesday, 12 August, before me, for the purpose of dealing with the lists from each party, and each party is to provide me with that list as soon as reasonably practicable but before

    
    

    10 o’clock on Wednesday.  They are the orders that I make.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date:  2 December 2009