Vasco and Birri (No. 2)

[2008] FamCA 177

FAMILY COURT OF AUSTRALIA

VASCO & BIRRI (NO. 2) [2008] FamCA 177

FAMILY LAW – CHILDREN – Procedural

Family Law Act 1975 (Cth)

APPLICANT: MS BIRRI

RESPONDENT: MR VASCO

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1400 of 2006

DATE DELIVERED: 18 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 18 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR FRIEDMAN

SOLICITOR FOR THE APPLICANT: WOMEN'S LEGAL SERVICE VICTORIA

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS SPEHR

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

Orders

1. That all extant applications be adjourned to 10 am on 12 May for a final five day hearing.

2. That the matter be listed for mention by telephone on 15 April 2008 at 9.00 am to ensure compliance with these orders. For that purpose, all parties by 14 April 2008 provide to my Associate their telephone numbers for the Court to contact them. That at the telephone mention, all parties be in a position to advise:

   (a)    whether the case is ready to proceed on 12 May 2008 and on what parenting issues;

   (b)   which witnesses each party proposes to call;

   (c)   which witnesses of the other parties are required for cross-examination;

   (d)   whether there are orders to be sought which have not been set out in writing;

   (e)    whether property issues have been resolved and if not, upon what evidence the parties are relying;

   (f)    whether any party proposes to pursue child support orders and if so:

   (i)on what jurisdictional basis;

   (ii)whether the Agency has been served;

   (iii)Whether the appropriate assessment has been filed.

   (g)   The expected duration of the hearing.

   (h)   Whether the Department of Human Services has had any further involvement with the parties;

   (i)     Whether all subpoenaed material has been inspected;

   (j)     Whether there are intended negotiations taking place.

3. That all parties have liberty to apply to my Associate for an urgent hearing on short notice.

4. That until further order, paragraph 2 of the orders made on 17 January 2008 is suspended.

5. That until further order, the father spend time with the child … (“the child”) born .. March 2003 as follows:

   (a)from 10 am on Sunday 23 March 2008 until 5 pm on Monday 24 March 2008;

   (b)from 5.30 pm to 7.30 pm on Wednesday 26 March 2008 and for a similar period every Wednesday thereafter;

   (c)from 10 am on Saturday 5 April 2008 until 5 pm on Sunday 6 April 2008; and

   (d)from 5.30 pm on Friday 18 April 2008 until 5 pm on Sunday 20 April 2008 and for a similar period during each alternate weekend thereafter.

6. If for any reason, the father is unable to attend any of the periods referred to in paragraph 5, he shall give the mother 24 hours notice.

7. For the purposes of paragraph 5, the father shall collect the child from the child care centre and return the child to the mother’s residence.

8. If for any reason, the child is not attending the child care centre, the mother shall give the father at least four hours notice by a telephone call to his mobile telephone and the father shall collect the child from the mother’s residence at the appointed time.

9. If the child is ill to such an extent as to be unable to spend the time set out in paragraph 5 in the care of the father, the mother shall advise the father by a telephone call to his mobile telephone and that day, obtain a medical certificate setting out why the child is unable to be cared for by the father which shall be sent to an address by post nominated by the father.

10. That until further order each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child (Male) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

11. That a copy of the reasons for judgment and these orders be forwarded by the Independent Children’s Lawyer to the appropriate team leader of the Department of Human Services with a request that the Department:

    (a)    continue to monitor the concerns expressed in their letter dated 13 March 2008 until the return date; and

    (b)   advise the Court of any concerns it may have.

12. That any further affidavit or amended application by either the mother or the father be filed and served by 4 pm on 14 April 2008.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1400  of 2006

MS BIRRI

Applicant

And

MR VASCO

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 18 March 2007, I had this case listed for final hearing. It is a parenting application. Each party now seeks that the child lives with them.

2. The child was born in March 2003. He is almost 5. He has not yet started school.

3. At the commencement of the hearing, the mother appeared represented by counsel and the father appeared without representation. Until recently, including in the filing of documents, the father had been represented. The mother had changed solicitors recently and counsel told me that he had been briefed after 5 pm on the night before the hearing.

4. The parents and the Independent Children’s Lawyer (ICL) all said that the case could not be contained within the three days that I had allocated. There was nothing unusual about that except that the ICL said that she intended to call a large number of professional witnesses the majority of whom had been subpoenaed. The mother said that she wanted to call two more witnesses about issues that had arisen since the last interim hearing a few weeks ago and they had not been committed to affidavit. The father had received notice of the mother’s intention, denied the allegations of these witnesses and had two affidavits that he wished to file as well.

5. I had called the case over in December and made orders for the filing of material however, events overtook that somewhat in a hearing that I conducted on 15 January 2008.

6. On any view, the case was not ready to proceed. The problem was compounded by the positions adopted by the parties.

7. To complicate the position a little more, the Department of Human Services has been involved and had written a letter in response to my s 91B Notice saying that they would not appear and intervene but that they had found protective concerns for the child in relation to conduct of the mother. The irony of that was that it was the mother who had brought the Department in about the behaviour of the father.

8. Ultimately, I have decided to adjourn the proceedings for a short period of time because the case does need attention and I propose to advise the Department of my concerns by bringing to their attention these reasons for judgment.

9. 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. When I heard the interim matter in January 2008, he was living with his 13 year old daughter from a previous marriage.  In court on 18 March, he told me that that arrangement had come to an end amicably with his former wife. His daughter will still see him on weekends and hence have a relationship with the child.

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

11. The parties separated on 29 April 2005. 

12. In January, I dealt with the background of the proceedings through the two courts. I shall not repeat it now.

13. On 21 September 2006, the matter came before Mushin J in the Duty List.  Orders were made with the consent of the parties 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. 

14. On 21 November 2006, the matter came before Mushin J again.  Orders made two months earlier were extended further.

15. Family Consultant Ms W was ordered to prepare a family report.

16. 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 made a notification to the Department of Human Services arising out of the mother videoing and photographing the child allegedly demonstrating how his father sexually abused him. 

17. Dr J examined the wife and filed an affidavit on 29 November 2007.   He found no mental disorder and no requirement that the wife receive any psychiatric treatment however in a subsequent report filed with the court only the day before the hearing was to begin, he raised the possibility of the mother having a personality disorder. He felt that there was a possibility of a condition called “Factitious Disorder by Proxy” but that assessment was outside of his expertise and a matter for a child psychiatrist. His comments are consistent with and raise similar concerns to Ms W and the Department.

18. The contact between the child and the father had been stymied up until that point in time because of the position adopted by the mother. That was difficult to understand because the father’s time with the child had been unsupervised for 14 months and the mother had consented on two occasions to unsupervised time.

19. On 15 January 2008, I was told there had been two notifications to the Department.  In their letter dated 13 March in response to the s 91B order, the Department said:

    The allegations have been investigated and a decision was made to substantiate the protective concerns for emotional risk to [the child] in the care of his mother, [name]. The concerns in relation to physical and sexual abuse by [the child’s] father, [name], have not been substantiated. (Emphasis mine)

20. The Department determined not to intervene. I was informed by counsel for the ICL that the Department had taken on some sort of monitoring role knowing that the matter was before this court. I expressed concern that with the protective concern expressed above, I was then being asked to make orders to which the parties largely agreed.

21. The mother had filed an affidavit by a witness who had heard the allegation made by the child in the presence of his mother.

22. The mother’s counsel told me that his client had instructed him to agree to the orders in substance suggested by the ICL but not the extent of the time. I pointed out the dilemma as I saw it that for the third time, his client was consenting to orders in circumstances where she had alleged impropriety of a serious nature against the father. He said that she was caught between “a rock and a hard place”.

23. The father told me that he would contemplate his application for a change of residence depending upon what happened to the orders under contemplation. He said he wanted the matter on quickly and he was not resiling from his application but he thought the proposals of the ICL were in the best interests of his son.

24. The ICL had recommended overnight time between father and son in January and that even after orders were then made, the mother had not permitted it to occur. I expressed concern that I was simply repeating what I had done in January.

25. The ICL adopted the position that notwithstanding the father’s application for a change of residence and the views of Dr J and the department, the reality was that there was not sufficient time for the whole case to be heard. Even if I had started it, I would have to adjourn it part heard.

26. The ICL suggested a starting base similar to the period I ordered in January and then after a couple of weekends, it should be expanded to two nights. In addition, the ICL said that there should be a mid-week meal arrangement.

27. The mother’s position was simple. She said that the child had never been away from her for any period and to go to two nights would have the potential to cause him distress. The real position was not known and there was little evidence of a manifestation of the likely problem. Counsel for the mother said that what was proposed was “too much of a burden” on the mother. As the ICL said, we had to move forward sometime and the mother was not in a position to say when the advance should be made.

28. The ICL also recommended that there should be three out of four weekends between father and son. The mother’s position was that the child was currently attending Sunday School and had made significant friendships which she did not want to disturb. I have difficulty with that because it tends to elevate those friendships above the relationship with the father. In circumstances where the relationship between father and son is otherwise good and needed to be enhanced, the Sunday school should be put aside. Those friendships can be developed later.

29. The mother also raised the interference with the various extra-curricular activities of the child during the week but on an interim basis, the same principle applies. If the child is to develop a strong, healthy and meaningful relationship with his father in circumstances were it has faltered until now and the mother suggests that there may be separation anxiety, it is important to not only test the water but also do everything necessary to foster and develop the relationship.

30. Little has changed from the submissions that I heard on 15 January save that the mother then rejected the need to make orders but now agrees to limited time.

31. I have considerable reservation about making orders of a similar nature to those in January when I have been told that those have not been effected.

32. The ICL and the father both say that the adjournment should be for as short a period as possible. The mother’s position is that extended time will enable an opportunity to see whether these orders can work in the child’s best interests. She says that the Department will have some role and the parties can all apply on short notice if there is a problem. My dilemma is that there is urgency here as expressed by both the psychiatrist and the Department. A short adjournment will give enough time to achieve five objectives.

33. The first objective is to ensure that the relationship between the child and his father is regularised whilst at the same time, he is not subjected to emotional abuse.

34. The second is to see whether the mother can implement what I have been told she resists. The third is to examine how the child would manage and cope with extended time away from his mother. The fourth is to allow the Department to further consider whether it has a view about protective concerns in the light of these interim orders. The fifth is to allow the parties to get their houses in order in relation to issues so that on the next occasion, the case proceeds properly. For example, at the hearing in January and still today, the mother’s immigration status remains a mystery. A subpoena was issued to the appropriate department in November 2007 but nothing seems to have happened to the information sought if in fact compliance with the subpoena occurred. The mother was granted leave to issue a subpoena to a speech pathologist but that did not seem to have been issued.

35. Counsel for the mother asked for an updated family report but there is no indication that any of the positions of the parties have changed.

36. The orders I propose are parenting orders within the meaning of the Act. I am required to make them only if they are in the best interests of the child. All of the matters requiring consideration as set out in ss 60CC and 61DA were canvassed in my reasons for judgment in January. I rely upon paragraphs 51 to 60 of those reasons.

37. It is in the child’s best interests that his time with his father be regularised, fixed and incrementally increased quickly. Accordingly, I propose to adopt the views of the ICL and the father.

38. Because of the modest period of the adjournment, in respect of the competing interests of the father as against the child’s church friends, the child’s interests in having a meaningful relationship must have more priority. To get the relationship stable quickly means that the child needs to spend a number of regular and successive weekends with his father and for that reasons, I am proposing to adopt the three out of four weekend suggestion notwithstanding that the matter will be back before me for final hearing before the full impact of that regime would have effect.

39. I propose by agreement of all parties to make an airport watch order.

I certify that the preceding Thirty Nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  19 March 2008