Vasco and Birri

[2008] FamCA 11

FAMILY COURT OF AUSTRALIA

VASCO & BIRRI [2008] FamCA 11

FAMILY LAW – CHILDREN – With whom a child spends time – Allegations of abuse – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Vasco

RESPONDENT: Ms Birri

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1400 of 2006

DATE DELIVERED: 17 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 15 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PAVONE

SOLICITOR FOR THE APPLICANT: EINSIEDELS

COUNSEL FOR THE RESPONDENT: MR ALLEN

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

Orders

1. That until further order, all existing parenting orders be suspended.

2. That until further order, the husband spend time with the child … born … March 2003 on each weekend from 10.00am on Saturday until 10.00am on Sunday commencing on Saturday 19 January 2008.

3. That the husband collect and return the child at the residence of the wife at …, T.

4. That each party provide a precise list of orders sought, such document to be served on all other parties including the Independent Children’s Lawyer and provided to my Associate by no later than 4.00pm on 24 January 2008.

5. That the Independent Children’s Lawyer as soon as practicable provide to Dr J a copy of the report of Ms W and request that Dr J provide any additional report that he considers appropriate to clarify any issues arising out of that further information.

6. That by 4.00pm on 24 January 2008, the wife deliver up to the subpoenas clerk of the Melbourne Registry of the Family Court of Australia all videos and photographs held by the wife or in her possession, power or control relating to any sexualised behaviour of the child.

7. Upon said materials being filed with the subpoenas clerk as required, all parties and the Independent Children’s Lawyer may inspect and copy such documents as and from 25 January 2008 and the production of a copy of this order shall be sufficient authority for the subpoena clerk to release such documents for that purpose.

8. That pursuant to s 91B of the Family Law Act, the Court requests the intervention in the proceedings of an officer of the Department of Human Services responsible for all issues associated with the welfare of the child.

9. That the Registry Manager of the Melbourne Registry of the Family Court of Australia notify the Department of Human Services of this order.

10. That upon request by the relevant officer of the Department of Human Services, the Registry Manager permit inspection of the court file by any person authorised by the Department of Human Services including the copying of any part of the file to enable consideration of the request to intervene in the proceedings noting that the final hearing of the matter is listed to commence on 18 March 2008.

11. That all interim applications be otherwise dismissed.

12. That the wife have leave to issue any subpoenae that she may be so advised to the child’s speech therapy organisation.

13. 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 Cronin delivered this day will for all publication and reporting purposes be referred to as Vasco & Birri

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1400  of 2006

Mr Vasco

Applicant

And

Ms Birri

Respondent

REASONS FOR JUDGMENT

1. The parties were married to each other in 2002.  I shall refer to them as husband and wife.

2. On 18 December 2007, the husband filed an application seeking an extension of time with the child of the marriage who was born in March 2003 (the wife’s material has always said that the child was born one day earlier in March 2003).  The child is not yet five years of age.

3. On 8 January 2008, the husband filed an amended application seeking orders that he spend time with the child from 6.00pm on 18 January to 6.00pm on 20 January and for a similar period each weekend thereafter except when he was on call at his work and the changeover of the child take place at a major shopping centre.  The dates belie what was really intended.  The application is in effect that the husband spend time with the child each Friday from 6.00pm until the following Sunday at 6.00pm.

4. During the proceedings before me, Mr Pavone of counsel said that his client wanted from Saturday morning until Sunday night for the next three consecutive weekends and thereafter, the time commence on Friday night and conclude on Sunday night.

5. It is this application that I am asked to determine.

6. The application was listed before me for final hearing on 18 March 2008 for three days as a primary fixture.  I had the case before me in my call-over on 9 November 2007 at which time, all parties appeared and were represented.

7. The husband is to file his material by 1 February and the wife, her material by 8 February.

8. The initial applications of the parties were filed in the Federal Magistrates Court as long ago as September 2005.  Accordingly I ordered that if any party intended to depart from the orders they sought in those documents, they had to send a precise list of orders sought to my Associate by 23 November.  There has been a remarkable silence.  That becomes relevant on the question of understanding exactly what the wife’s position is. 

9. The wife filed no material but appeared and was represented by counsel.  Her position was to oppose the application.  She said that with the lateness of the application and the intervening holiday period, her lawyer had not been able to prepare material.

10. Because I had all of the parties before me, I allowed significant latitude about what it was that I was to understand the case was really about.  That was particularly so because the husband’s affidavit set out very little detail, the Independent Children’s Lawyer had left Australia and gone overseas and the wife’s legal practitioner was on holidays.

11. The wife’s primary position is that with the final hearing only eight weeks away, this particular application is an abuse of process.

12. The husband’s position is that he has been frustrated by the inability to extend his relationship with his son.  This is particularly so having regard to a number of recommendations that had been made by witnesses who presumably will be giving evidence before me in March. 

13. The question is whether I can make a decision which I am satisfied is in the best interests of the child on what I have heard regardless of what was strictly the evidence in the affidavit of the husband.

14. To understand the dilemma, it is important to look at the history.

15. The husband is aged 46 years.  He was born in South America.  He is a tradesman.  He currently lives in what was the former matrimonial home with his 13 year old daughter from a previous marriage.  That child has just moved to live with the husband.

16. The wife was also born overseas.  She is 41 years of age and occupied in home duties.

17. The parties met and married in Australia in 2002 and as will be seen from what I have already set out, the child was born in March 2003.

18. The parties separated on 29 April 2005.  It was the wife who issued proceedings on 14 September 2005 seeking that the child live with her and that the husband have such contact with the child as the Court deemed appropriate.  On 3 October 2005, the husband filed a response seeking that the child live with him and that the wife have contact with the child for two weekends out of every three from 6.00pm Friday until 6.00pm Sunday together with two afternoons per week.

19. It is important to note those orders because of what I said and ordered on 9 November 2007.  That is the parameter of the dispute.  At the hearing before me, Mr Pavone for the husband said that his client was seeking that the child live with him and unless I am informed otherwise, as a result of the orders that I made, the husband is proposing extensive contact between the wife and the child.  Mr Allen of Counsel for the wife said that his client’s position was that she wanted the father to have time with the child but that it had to be supervised.  That was clearly not my understanding as a result of the orders that I made in November.

20. On 8 November 2005, the case came before Federal Magistrate Bennett as she then was and the child was ordered to spend time with his father each Saturday for a number of hours but under supervision.  Orders were then made for an Independent Children’s Lawyer to be appointed.

21. As a result of the Federal Magistrate’s order, Mr R prepared a family report in March 2006.  At that time, the Federal Magistrates Court anticipated that the final hearing would be in May 2006.  As it turns out, the case was transferred to this Court.

22. Mr R alluded to the bitter separation arising out of the wife’s allegation of a violent assault.  Mr R reported that the wife’s perspective was that the husband was an impulsively violent paedophile from whom the child needed protection.  On the other hand, Mr R reported that the husband said that the wife was a deceitful, manipulative opportunist determined to undermine his relationship with the child.

23. At that point in time, the wife had speculated regarding the sexual abuse of the child by the husband but Mr R noted that there was no corroborative evidence.  It must be kept in mind however that the child at that stage was very young and did not have the linguistic skills nor capacity to articulate what had happened to him.

24. Mr R considered all of the circumstances and recommended the introduction of unsupervised weekly contact.

25. On 21 September 2006, the matter came before Mushin J in the Duty List.  The wife was represented by counsel as was the Independent Children’s Lawyer.  Significantly, the husband appeared in person.  Notwithstanding all of the things that had been said by Mr R, the parties agreed for the husband to spend unsupervised time with the child each Saturday from 10.00am to 5.00pm with the changeover at the wife’s home in T.  That order was made in the context of the parties indicating to the Court that they were pursuing the issues two months later on 21 November 2006 as a contest.

26. On 21 November 2006, the matter came before Mushin J again.  The wife was again represented as was the Independent Children’s Lawyer and the husband appeared in person.  Again, the parties compromised their position and the orders made two months earlier were extended further.

27. It is important to note therefore that the orders of September and November 2006 were by consent of the parties.  The Court had not intervened at all.

28. The proceedings were listed for a Trial Notice hearing on 18 May 2007 before Registrar Williams at which point in time, a family report was ordered.  This time, the report was prepared by family consultant Ms W. 

29. Ms W interviewed both parties and observed the child with each of them. 

30. Ms W noted that the wife maintained that the child had been physically and sexually abused by his father during the unsupervised visits.  Ms W was sufficiently concerned about what she witnessed to make her own notification to the Department of Human Services but it would seem that the Department showed no interest.  The concern of Ms W seems to have arisen out of the mother videoing and photographing the child allegedly demonstrating how his father sexually abused him.  Ms W unashamedly expressed concern about the mother being preoccupied with the sexual abuse allegation.  That attitude of the wife is clearly consistent with what she told Mr R but it appears that she was now endeavouring to produce some material to support her argument.

31. Ms W expressed the view that a psychiatric assessment of the wife might be in order to determine the impact of her own issues on her capacity to meet the needs of the child.

32. Dr J examined the wife and filed an affidavit on 29 November 2007.   There is some considerable confusion in his report about the allegations of sexual abuse against the child and that may ultimately have some bearing on his conclusion but in respect of matters generally, Dr J found no mental disorder and no requirement that the wife receive any psychiatric treatment.

33. One of the issues that was raised although not in the documentation was the need for the Independent Children’s Lawyer to speak to Dr J to sort out exactly what he intended.

34. After the Trial Notice hearing before Registrar Williams, the matter came to me to be listed for final hearing and I have already referred to the orders that I made on 9 November 2007.  The question of a potential application to vary the existing orders pending the final hearing was not raised.  Whilst I would not have countenanced a hearing at that time having regard to the number of matters that I had in the call-over that day, any proposed application should have been mentioned.  Had the issue of some urgency been raised, I might have contemplated not fixing the case for final hearing but rather determining the interim issue.

35. The husband’s affidavit in support of this application sets out that on 24 October 2007, he received a letter from the Independent Children’s Lawyer setting out the contact regime under which, there was no reference to any overnight time.  He then decided to appoint solicitors to act for him in anticipation that there might be some action.

36. On 4 December 2007, his new solicitors requested the wife’s solicitors for some overnight time and three days later, the wife’s solicitor simply rejected the request.  Whilst it was a rather blunt rejection, having regard to the orders that I made on 9 November 2007, the husband could have been excused for being frustrated because the wife had certainly not indicated what her position was and certainly as I understand it, there had been no reference to future contact being supervised.  It must be borne in mind that the husband’s time with the child was unsupervised.

37. The husband made no bones about the fact that he was frustrated in circumstances where he felt he should be able to spend more time with the child.  He said the relationship with the child was otherwise good.

38. Mr Pavone submitted to me that what the husband was really frustrated about was the development of a meaningful relationship with the child.  The dilemma with that argument is that a meaningful relationship does not necessarily mean an optimal relationship and whilst I can understand the husband’s frustration, my greater concern was with the lack of clarity about the wife’s position.

39. To compound the problem, the husband did not see the child on either of the weekends of 23 December or 6 January but I am told that other periods have otherwise been fulfilled.

40. Mr Pavone put it to me that this period of time with the child had been unsupervised now for 14 months but Ms W had recommended that not only should the contact be unsupervised but it should be overnight.

41. On the basis of that material, everything pointed to the fact that there was no risk for the child being in the care of the husband.  That is strongly supported by the fact that there has been no application made to suspend the orders during the 14 months.  For the wife to now say that it is her intention to seek those orders flies in the face of her actions.  Even should there be a funding problem associated with legal aid, one would have expected a plethora of correspondence and/or negotiations through the Independent Children’s Lawyer expressing the concerns of the wife and seeking support for the suspension of the arrangements.  On what I can understand from the parties, that has not occurred.

42. However, all is not as simple as that.  I was told and this is not in any affidavit by any person, there have been two notifications in recent weeks to the Department of Human Services in Victoria.  I was informed that the Independent Children’s Lawyer was told of these just prior to leaving for holidays and that they relate to comments made by the child to mandated authorities that he had had a cigarette apparently put up his nose and that he had been hit with a broom stick.  According to Mr Pavone, his client knew nothing of these allegations and one could only speculate as to exactly what they mean.  Suffice to say, there is no evidence as to what the Department of Human Services thinks about those allegations or is doing about them.

43. Mr Pavone’s submission was that there was absolutely no basis upon which there was a justification for a continuation of the restricted time even with the impending final hearing.  He pointed strongly to the recommendation of Ms W. 

44. Mr Allen however said that there were criticisms to be made of Ms W and her opinion but that most importantly, the husband had not taken the opportunity to bring the proceedings until this point in time and with the trial only a few weeks ago, this application was totally inappropriate.

45. He reiterated what I had been told about the notifications and said that they were allegations of physical abuse of the child by the husband although they came directly from comments by the child.  There is no apparent objective evidence.  What is troubling about that is if the child was somehow struck with or touched by a cigarette, one would have expected not only some injury but also a very quick complaint.  Similar comments could be made about the child being struck.

46. Ms Agresta appeared on behalf of the Independent Children’s Lawyer.  She said her instructions were that there was no unacceptable risk and it was not until the time of her instructor’s departure for holidays that she became aware of the allegations.

47. Ms Agresta’s response to the material was that notwithstanding the absence of detail, it seemed logical to increase the time between father and child because of all of the positive things that were otherwise said about the relationship.  She agreed with Mr Pavone that it was time to move on to normalise the relationship between parent and child.

48. I raised the question of whether or not there was sufficient material to satisfy me not only about the physical issues of care but also how the child would cope with a change to an overnight situation.  Both counsel for the Independent Children’s Lawyer and the husband said that the child ought to be cared for in the former matrimonial home with which he is obviously familiar having stayed there for the last 14 months and that there is no reason to suggest that he would not cope with an overnight period. 

49. Ms Agresta suggested that the solution to the problem was to make the time period of 24 hours and that if the Independent Children’s Lawyer became aware of any concerns particularly expressed by the Department of Human Services, the matter could be quickly brought back before the Court.  Whilst I agree with that, I think it is also important that there be coordination between this Court and the Department and I propose to make an order that the Department at least be informed of the fact that these orders that I propose are being made.

50. Because I am asked to make a parenting order, I must regard the best interests of the child as the paramount consideration. To assist in determining that issue, I am obliged to consider all of the matters that are set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth).

51. Before looking at those issues, notwithstanding this is a discrete issue, I am also obliged to consider the question of equal shared parental responsibility.  Section 61DA(1) says that I must apply a presumption that it is in the best interest of the child for his parents to have equal shared parental responsibility for him and that subject to making that order, certain consequential orders have to be considered.  However, s 61DA(3) says that when I am making an interim order, the presumption would apply unless I considered that it would not be appropriate to apply it.  I do not intend to apply the presumption in this case for two reasons.  The first is that it is now only some weeks away from a final hearing when all of the matters can be properly canvassed.  I do not have anywhere near sufficient evidence to contemplate the question of the decision-making processes between the parties about the child’s future.  It would therefore be inappropriate for me to contemplate that sort of question today.  The second issue relates to the fact that I do not have material which has been tested nor do I have any material from the wife.  The absence of affidavit material is not a disqualifying feature for the wife because that issue could be clearly covered by questions about correspondence and discussions between the parties.  I have none of that material.  In those circumstances, it is not appropriate for me to apply the presumption.

1. Turning then to s 60CC, on what I have read, it seems clear that the child is not of an age where I could give his views any weight and even if I could, I am not at all clear on what they are. 

2. However, I am satisfied on what I have read in both the reports of Mr R and Ms W that the relationship between the husband and the child is very strong.  There is no evidence from any person nor any complaint by the wife that there ought not be a relationship in the future between the husband and the child.  The wife’s position is that it should simply be supervised.

3. One of the matters that I am obliged to consider is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other person.  The wife’s complaint as expressed to Mr R two years ago related to abuse whereas the husband’s complaint was that the wife was endeavouring to cut him out of the child’s life.  That is an issue that needs to be carefully considered because each party is ultimately seeking an order for the child to live with them on a full-time basis.  I am not in a position at this stage to make any finding about the wife’s position but there is no evidence that I can see to suggest that the husband is doing anything in a negative way about the relationship between the child and the wife.

4. I have expressed concern to the parties about how the child would cope with changes in his circumstances and in particular his separation from the wife by an immediate overnight period of time but I am assured by the Independent Children’s Lawyer that there is no basis for concern there because the relationship up until now has been successful and that the next step is simply one that will normalise the relationship.  To a very large degree that is an unknown question but having regard to the fact that the trial is only some weeks away, I see no real risk involved.

5. There are some arguments between the parties about exactly where the wife is living and the husband tended to suggest that she had changed her address significantly from where she was in T but I was assured by counsel that that was not the case.  To some extent therefore although the husband complains about having to travel the distance that he does, that is an issue that can be properly determined at trial and there is otherwise no impediment from a geographic sense to the orders that I am now proposing.

6. I also raise the absence of evidence in relation to the capacity of each of the child’s parents to provide for the needs of the child but again, the Independent Children’s Lawyer said that all of the evidence pointed to the fact that the child had a good relationship with the husband probably enhanced by having a sibling there as well and that I ought not to be concerned about that issue. 

7. There is significant angst and a very big dispute between the parties about the attitude to the child and the responsibilities of parenthood because of the wife’s persistent allegations of not only sexual abuse but also physical violence.  However, if what Mr R reported was accurate, the wife is alleging not just those matters but that the husband is a paedophile.  To unrealistically and unreasonably adopt that opinion might lead to a finding of an irresponsible attitude towards parenting and as such, the parties who are yet to file their affidavit material will need to be very clear about what they are asserting.  For the purposes of an interim hearing however, I have to rely on what limited information I can gather.  A significant feature of this particular case as I have already pointed out, is the absence of material from the wife not just in affidavit terms but in relation to complaints about what has occurred over the last 14 months.  The absence of that material suggests to me that the concern is not as significant as the wife would have the Court believe.

8. Section 60CC(3) requires me to consider family violence.  There is a dispute between the parties about an incident that precipitated the separation and that will no doubt be canvassed at trial.  However, to a very large degree, it is less important where subsequent to separation and that incident, there are no allegations of family violence as between the husband and the wife and consent orders are made for unsupervised contact.  Lest there be any misunderstanding, I am very clear that there is an allegation of physical violence against the husband in relation to the child.  That is the reason I propose to invite the Department of Human Services to participate if they so choose because on what I have been told, the wife is now saying that the child is alleging those things have occurred whilst in the husband’s care.  There is apparently however, no objective evidence that would give rise to an immediate concern by me on an interim basis. 

9. Other matters in respect of s 60CC(4) and (4A) are also matters that affect the decision in a parenting case but as the evidence is scanty and will no doubt be comprehensively tested at trial, there is little that I can draw to assist me in respect of those matters.

10. There is little doubt therefore that all of the indicators are that the child has a good relationship with his father and that there is no basis for the continuation of the limitations.  In the normal course of events, after 14 months, with a child of the child’s age, one would have expected to be seeing extensive time between father and son.  However, all of that depends upon whether or not the wife has any evidence that might completely contradict that logic.  I accept what the wife’s counsel says about this application being inappropriate at this time particularly having regard to the fact that it had not been foreshadowed earlier but I still have to determine the matter on the basis of what is in the best interests of the child now that the issue has been raised before me.  I feel comfortable in saying after hearing all of the submissions of each party that there is no risk for the child in extending the time but I do not accept there is anywhere near sufficient evidence for me to presume that the child could cope with the period of time suggested by the husband.  It seems to me therefore that the period of time proposed by the Independent Children’s Lawyer has a ring of reality and sensibility about it and that is the period of time that I propose to order.

11. I am very concerned about the fact that the case is listed for final hearing in only a few weeks time and there are many things still apparently incomplete.  None the least of those problems relates to what orders each party is seeking.  I propose therefore to make quite precise orders binding the parties to a particular position notwithstanding that I am repeating what I said in November.

12. Apparently, according to Mr Pavone, there is going to be significant evidentiary issues associated with what occurred during the period of time that the child saw Ms W.  The wife told Ms W that there were videos and photographs.  I propose to order that they be produced to the Registrar via the subpoenas clerk by Thursday 24 January to remain there pending further order from the trial.  Those documents pursuant to my orders may be released for inspection by both parties and the Independent Children’s Lawyer.  In so far as those documents are not produced, the wife’s allegation will face severe credibility limitations.

13. I also propose to endeavour to clarify the report of Dr J by having the Ms W report made available to him as soon as possible.  I propose that that step be undertaken by the Independent Children’s Lawyer.

14. Accordingly I make orders.

I certify that the preceding Sixty Five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  17 January 2008