Vasco and Birri (No. 3)

[2008] FamCA 639

FAMILY COURT OF AUSTRALIA

VASCO & BIRRI (NO. 3) [2008] FamCA 639

FAMILY LAW – CHILDREN – Consent orders

Family Law Act (1975) Cth

Re N [2001] FamCA 628
Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Birri

RESPONDENT: Mr Vasco

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1400 of 2006

DATE DELIVERED: 16 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12, 13, 14, 15 & 16 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.A. Glover

SOLICITOR FOR THE APPLICANT: Women’s Legal Service Victoria

COUNSEL FOR THE RESPONDENT: Mr W. Henwood

INDEPENDENT CHILDREN'S LAWYER COUNSEL: Ms J.P. Spehr

INDEPENDENT CHILDREN'S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That until further order each party, (the mother born … June 1966 and the father born … August 1961) 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 born … March 2003 (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.

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

5. That all material produced under subpoena be returned to the recipient of the subpoena.

6. That until the day, one month after the husband pays to the wife the settlement sum referred to in the property orders made this day, the husband collect the child from and return him to, the wife outside of her residential premises at T.

7. That after the husband pays the wife the said settlement sum, for the purposes of all changeovers relating to the child, the wife deliver the child to the husband at the carpark of Officeworks in C and upon the completion of the said period, the husband return the child to the wife at the same said carpark.

8. 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

REASONS FOR JUDGMENT

1. This is predominantly a parenting case that I have been dealing with for a week, as well as the fact that I had significant intervention in it in the preliminary stages on its way to a final hearing.  After four and a half days of hearing and significant cross‑examination of both parties, an agreement has been reached in relation to the parenting of the child, who was born in March 2002, and is therefore six years of age. 

2. Throughout the proceedings I have had the assistance of counsel for the Independent Children's Lawyer indicating very clearly the concerns that the Independent Children's Lawyer has had, predominantly in relation to the care of the child in the care of his mother.  Although I have not finished all of the evidence, it would be abundantly clear and obvious to anybody who had sat through what I have heard, that one of the major concerns about the care of  the child with the wife is the fact that she has a belief that the child is not being properly cared for by his father in the sense of both physical abuse and sexual abuse, notwithstanding an enormous amount of investigation by the Department of Human Services, the relevant department within the police force and a variety of doctors.

3. I have also had the benefit of hearing from Dr S who was a paediatrician working at what was then called the Gatehouse.  Dr S expressed the concerns that I hope I have put in a fairly neutral and general way.  Notwithstanding all of that, the parties today have reached agreement.  The agreement provides for the child to live with his mother as has been the case since separation, and for the father to have time with the child, leaving aside holidays, on each Wednesday from 5.30 pm to 7.30 pm providing he gives 24 hours prior notice, and also on each of two out of the three weekends, again, save when he is on call from Friday night through to Sunday night. 

4. The issue that is not agreed between the parties is the travelling issue, and I shall deal with that in just a moment.  The Independent Children's Lawyer has remained silent on the issue of the minutes, indicating that she neither opposes them nor supports them.  In Re N [2001] FamCA 628 a case very similar to this in many ways, the Chief Justice was told that the father was going to walk away from the child or children completely notwithstanding the Chief Justice's very clear indications that he thought it was appropriate for the father to have some time with the children. The father at that stage said that he could no longer tolerate not only the proceedings but the accusations that were being made against him.

5. What the Chief Justice did in that case was to indicate that there is a limit to which the Court can interfere in what is clearly an area of private law, and he said that notwithstanding any reservations he may have had about what the parties were doing, he was prepared to make the orders even with the Independent Children's Lawyer remaining silent.  Since then the Act has been amended and there is a much greater emphasis on not only the parties sorting out problems but also in a very positive way, having a significant role in the lives of their children. 

6. Section 60CC(5) says that the court does not need to look at the questions of the best interest principle in consent orders if it feels that it is not appropriate to do so.  Whilst in this case I have some reservations about what the parties are doing, they have agreed to a particular course of action in relation to obtaining some assistance from child psychiatrist Dr A I think that this is a case in which the court ought not interfere with what is clearly an area of private law.

7. I have had the benefit of discussion with counsel for both the husband and the wife on the issue of what might arise if these arrangements do not work and the parties need to come back again.  Both counsel have indicated to me their consciousness of Rice v Asplund (1979) FLC 90-725.  

8. The orders provide that the wife and the child attend upon psychiatrist Dr A at a time and place to be arranged by the Independent Children's Lawyer for the purposes of an assessment of a disorder known as factitious disorder by proxy and for the preparation of a report.

9. That exercise is to be undertaken at the expense of the husband and a copy of the outcome of that report is to be made available to the family consultant proposed by the parties.  I shall order supervision under s 65L of the Act.  If Dr A thinks fit, the child paediatrician Dr D will get a copy of that report.  I raise all of these issues because the parties have indicated a consciousness of the fact that if something comes out of that report which is nothing more than what they already know, they may have significant difficulties coming back into the court to have parenting orders made.  They will certainly face the hurdle because this issue has been canvassed.

10. As I said, apart from those concerns which the parties are conscious of, the orders otherwise revert to what the parties seem to have been doing, albeit not very well.  It has been a matter of some considerable concern that so many orders of the court were not carried out.  The parties seem by these orders to have thought about all of that and have decided that this is the best way for the father to have a significant role in the child’s life.

11. So on the basis of all of those reservations, I still think that it is appropriate for me to step back to make the orders in the terms of what the parties have sought.  There are also orders in relation to the continuation of the current watchlist and although those were interim orders, I will make those final as well.

12. The parties have sought an order under s 65L of the Act which effectively provides for a period of 12 months for the Director of Child Services of the Registry to nominate a family consultant to provide assistance as is reasonably requested by the parties in the carrying out of these orders.  I will make that order on the basis that I think there are problems still facing the parties having regard to all of the matters that I have just mentioned.  I would hope that they can endeavour to resolve the problems with the assistance of the family consultant bearing in mind that anything they say to the family consultant may be used in future court proceedings.  The family consultant's evidence is no longer privileged. 

13. That leaves me with one other issue to determine of a parenting nature.  Where is the changeover of the child to occur?  The wife's position is that the husband should do the travelling, and that an alternative to that position is that the child should be collected and dropped off at the Officeworks store in C.  That it is near the Eastern Freeway, and with the opening of the Eastlink, the father will have the opportunity to travel a little bit more easily than he would otherwise from the H in the outer south-east.

14. I do not have any evidence about exactly what all of that means.  Mr Henwood says that his client asserts that currently it is a four hour roundtrip, two hours each way, but that cannot be right once the new Eastlink opens if the father travels from H.  The husband's position is fairly simple.  He says there ought to be a pick up at one end by one party and a collection by the other party at the other end.  In this case I heard some evidence which was largely unchallenged, and I now understand is basically accepted, that the wife has had an accident in her motor car, and needs the car to be repaired. 

15. By virtue of the property settlement orders which I have also made today between the parties the wife will shortly have some money and Mr Henwood says that his instructions are that one month after the settlement of the property proceedings, the new regime should start for collection and delivery of the child, because the wife will have the money and the time to get the car fixed.

16. This is clearly a subjective judgment.  The basis upon which I would normally determine such a matter really boils down to the question of the economics.  Having regard to the travelling that is involved, many people travel much further than from the outer south east to the northern suburbs in most cases these days anyway, so the time is not an issue from my perspective.  What is of concern is the fact that I had heard evidence that the wife is about to lose a significant amount of child support by virtue of the new formula assessment, and on my very rough mathematical calculations she is about to lose $60 per week.

17. On the basis of that, whatever is left over under the new child support arrangements must clearly be seen to go towards housing, clothing and food for the child.  I do not know exactly what the husband earns but if he is paying $60 less per week in child support it seems to me that he is in a much stronger position to be able to afford the cost of the travel, and having regard to what I have heard about him in terms of his desire to have a very significant role in the child’s life, I would have thought that he would be more than happy to jump at that opportunity to spend the time with the child, whether it is in the car or otherwise.

18. In the circumstances it is my view that the appropriate order is that the handover point be the Officeworks in C in the inner city area.  In the course of discussion I canvassed the fact that the orders also provide for Wednesday night time between father and son, providing the father gives 24 hours notice.  It has been made clear by the father’s counsel that the travelling issue is not one that would affect him on the Wednesday night having regard to the amount of time he will spend with the child, and so the order I will make on that night applies just the same.  In other words on the Wednesday night the handover point can be at the Officeworks as well.

19. My recollection using a bit of local knowledge is that the Officeworks is open until 9 pm on a weeknight, so there will be plenty of light and people around in the area just in case there are problems.  I raise that subject because I was given considerable evidence about the father’s reluctance to have the handover at any other place than a contact centre or a police station or McDonalds, and in my view this is a good opportunity for the parties to start jointly working out what should happen for the child’s future.  I raise that particularly because notwithstanding all of the evidence I have heard, I have been asked to make an order that the parties have equal shared parental responsibility for their son. 

20. I would expect this is the first day in the rest of the child’s life and that the parties will start to seriously work towards a joint parenting program.  Lest it be said that everything I have indicated so far is negative, I want to make it clear to both parties that I am pleased that they are at least working in a positive way about the child’s future.  This child needs both parents, he needs both parents with a combined approach to his future.  He has an extraordinary benefit in that the parents come from entirely different cultures living in Australian society.  That is something that very few children have the benefit of.  As such, both parents not only need to respect the other parent's culture, they need to encourage the child to be involved in that culture. 

21. I am encouraged by what I have heard, particularly from the father today, and I give him a lot of credit for signing these orders in circumstances where he has been the main complainant about what has been happening.  I only hope for the parties’ sake that this is something that will now enable them to put the past behind them and work towards their son's future.  If that is in fact what happens, there can only be one winner in this case and that is the child.

22. If the parties do not cease this litigation then the child will clearly be the loser.  It is time to put things behind them, start putting their lives in order and sitting down and working out the decisions for the child’s future.  In those circumstances I will make orders in terms of paragraphs 1 to 4 and 6 to what is now 20 in terms of the minutes.  I will ask that the solicitor for the wife email those minutes, and I will make orders that read not by consent but an order of the court, that for the purposes of collection and return of the child, the wife deliver the child to the husband in the carpark of the Officeworks business in C at the appointed time, and that the husband return the child to the wife at that point for the purposes of these orders.  This will take effect as and from one month from the date of the settlement of the property proceedings.  In the meantime the changeover will be at the wife's residence.

23. I make further orders that the material produced under subpoena be returned to the recipient of the subpoena.  I make orders that my reasons be transcribed and a copy be made available to all parties.  

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 May 2008