Vecchi and Vecchi - [2009] FMCAfam 1464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VECCHI & VECCHI

[2009] FMCAfam 1464

FAMILY LAW – Interim arrangements for care of four children aged 5, 3, 2 years and 12 months – mutual allegations of family violence – presumption of equal shared parental responsibility – father alleges children frightened to return to the mother – mother alleges she has been children’s primary carer – involvement of family consultant – best interests.

Applicant:

MS VECCHI

Respondent:

MR VECCHI

File Number:

ADC 3213 of 2009

Judgment of:

Brown FM

Hearing dates:

17 & 18 December 2009

Date of Last Submission:

18 December 2009

Delivered at:

Adelaide

Delivered on:

18 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr B McQuade and then Ms T Lewis

Solicitors for the Applicant:

Vicki Lehmann & Associates

Counsel for the Respondent:

Ms H Tinning

Solicitors for the Respondent:

D'Angelo Kavanagh

ORDERS

The children [W] born [in] 2004, [X] born [in] 2006, [Y] born [in] 2007 and [Z] born [in] 2009 live with the mother.
The father spend time with the children as follows:
(a)From 3:00pm on 19 December 2009 until 5:00pm 20 December 2009;
(b)From 3:00pm on 25 December 2009 until 5:00pm 26 December 2009;
(c)On alternate weekends commencing 1 January 2010 from 4:00pm Friday until 5:00pm Sunday provided on the occasion of [Z]’s birthday the time will commence at 3:00pm;
(d)On alternate Thursdays commencing 4 February 2010 overnight from 3:30pm until 9:00am the following Friday; and
(e)At any other times and on any other conditions as the parties agree from time to time.
The parties do all things necessary to enrol in the children contact service most convenient to their respective homes so that they can utilise such service for all necessary handovers of the children.
Pending their entry into such contact centre handover program the parties exchange the children at the McDonald’s Restaurant [location omitted] with the mother entitled to attend handovers with one person only of her nomination.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.
The parties be restrained and an injunction is hereby granted restraining them from discussing the court proceedings with the children or permitting any other person to do so.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with Ms Pam Hemphill on 3 March 2010 at 11:15am, to discuss the care, welfare and development of the children in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
Further consideration of the matter is adjourned to 4 March 2010 at 9:30am when consideration will be given to further conduct of this matter including whether the children should be independently represented or the matter transferred to the Family Court.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3213 of 2009

MS VECCHI

Applicant

And

MR VECCHI

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the interim hearing. Given the controversy generated by the proceedings, it is appropriate that they be transcribed.
Yesterday morning, the matter of Vecchi was listed in my court. The proceedings between the parties, who are Ms Vecchi, to whom I will refer as “the wife”, and Mr Vecchi, to whom I will refer as “the husband”, began with an application brought by the wife on 14 August 2009.
At that stage, she only sought orders in respect of the division of the parties’ property. The application came into the court for the first time on 23 September 2009. On that occasion I made some procedural orders and some other orders largely, I think, with the consent of each of the parties.
I noted at the time that the parties’ former family home was subject to a contract for sale. As a result I made some orders dealing with the management of the proceeds of sale and some other procedural orders, particularly that they should attend a conciliation conference with a court official on 3 December 2009. The matter was adjourned until yesterday, 17 December.
Accordingly, what I anticipated would happen yesterday was that I would deal with the property aspects of the case which most probably meant that I would fix the matter for hearing about only issues to do with property.
It did not turn out that way, as each party knows, because prior to that time the wife had brought an urgent application in respect of the parties’ children and Mr Vecchi, the husband, had responded to that application. I had to deal with those competing applications against a background of considerable heat and emotion.
I did not have time yesterday to prepare or give extensive reasons for what I did yesterday which was ultimately direct that the children come into the court building here, and be delivered to a court counsellor and then through the auspices of that court counsellor, go on to their mother.
I also ordered that the counsellor concerned prepare a report for the court about her involvement with the matter. I have that report.

Ms Hemphill, the counsellor concerned, indicates that, after some initial reluctance, the children left the court building with their mother and were glad to see her. I will come back to the significance of that report in a moment.
By way of background, the wife, I think, has been employed, in the past, as a [occupation omitted]. Mr Vecchi, the husband, has been a [occupation omitted]. I think, he has been self employed from time to time. I might be wrong about that.
But most importantly, so far as the present proceedings are concerned, the husband and wife are the parents of four fairly young children. The parties are in dispute about arrangements for the children’s care.
They are [W] who was born [in] 2004, so he is going to be five [shortly]; [X] who was born [in] 2006, so he is about three years and 10 months of age; [Y] who was born [in] 2007, so she is getting on for two and a half; and [Z], the baby of the family, who was born [in] 2009, so [Z] is not yet one year of age.
That is a lot of children. They are all under five. They must be a handful. I am sure they are lovely children, because all children are lovely. But they are also very vulnerable obviously because they are not in a position to look out for themselves, to care for themselves. They must be dependent on those around them, who are mature and grown up, to tend to their needs. So I am concerned about the vulnerability of the four children concerned. As such, I am satisfied there was a situation of urgency yesterday with which I had to deal.
I do not relish making decisions about other people’s children. I would much prefer that parents make decisions about their children. My role is to make orders only when there is a dispute between parents, which they themselves are incapable of resolving. I have this role for essentially two reasons.
Firstly, so that the best interests of children can be safeguarded. Secondly, if there was not such a mechanism for decisions to be made, in circumstances where parent were in dispute, those parent, I suppose, would literally fight it out and the stronger person would get the advantage and that would not be a good thing, particularly for children, who are the weakest people in society. So there has to be a rational mechanism for resolving these types of disputes.
Having said that, it is inherently unsatisfactory that important decisions about children have to be made at what lawyers call the interim stage. At the interim stage what happens is that the parties concerned prepare affidavits. They are legal documents and the parties depose as to the truth or otherwise of what is in those legal documents, and others who are involved in the case do the same.
I have read all the documents that have been prepared for this case. It is not unknown for people, when they prepare affidavits, to either be misled about the true circumstances of what happened in the past, or either consciously or unconsciously manipulate their evidence and sometimes in extreme circumstances people tell downright lies.
The way the truth or otherwise of what a person says in an affidavit is tested is through the process of cross‑examination. People go into the witness box and they get asked questions and people in my position make a determination about who was telling the truth and who was not telling the truth or whether somebody is just mistaken about what happened because of the passion of the situation or for whatever other reason.
It is a common phenomenon for people to be involved in exactly the same incident and for one to think [A] happened and for the other to think [B] happened and neither of them may be telling a lie. That is just the nature of human experience. But, as I say, people do tell lies for all sorts of reasons.
But at this interim stage, I am not in a position to make findings of fact about who is telling the truth and who is not telling the truth, because there is no time for this process of cross-examination to take place. But I still have to make a decision, on the basis of the affidavits filed because of the urgency of the situation.
In addition, at the interim stage there is likely to be a lot of evidence that is not available to me. The most significant piece of evidence usually, in a case involving children, is that at the interim stage there is no independent or objective assessment of what are the psychological and developmental needs of any children concerned.
There is no family report. That is what the lawyers call them. There is no time for such reports to be prepared, at the interim stage. Such reports are likely to be very useful. They involve an expert seeing the parties with the children concerned, see how they deal with the children and what sort of level of relationship is there.
Yesterday, obviously, I could not get such a report because of the pressing nature of the issues which each of the parties had raised, and I will come to those in a moment. I also suspect that there are other people who are interested in the outcome of this case. I suspect on both sides there are grandparents of the children who are deeply concerned about all of them and who love them very much indeed and have something they want to say about the matter. But again they have not had time to prepare their affidavits.
The other thing about situations of urgency is that very often people do not have a chance to think carefully about what they say in their affidavits. They put them together pretty quickly. They go into their lawyers and essentially dictate an account and there is no time to closely consider the import of what is said in affidavits. It is my experience that people get hurt about what they read about themselves in affidavits.
Lawyers and people like me, we are Teflon coated, like a frying pan. You know what a Teflon coated frying pan is; nothing sticks. We do not get hurt by reading about what other people say about each other in their affidavits. But the people who are the subject of the affidavits get very hurt, of course they do, and that has the propensity to drive people’s emotions and passions.
I hope part of my function is to calm emotions. That is a very difficult thing to do because I myself am human, I hope, and I respond to the emotion of people around me, particularly all the lawyers who say this is very urgent, something has to be done instantly or something horrible will happen; the implication being that if something horrible happens, it will be my fault. So I try to calm everyone down.
I have to point out to people that I am not deciding the long-term outcome for these four children today. What I am doing, if you like, is applying some triage. Triage is what you do when you go to the casualty section at the hospital when somebody has a wound. It gets urgent attention and if people have to come back to the hospital to have more detailed treatment, well, they come back later.
So it is like putting a bandage on things. So I am not deciding the long-term outcome for the children today. What I am doing, as best I can, against a background of incomplete evidentiary material and some extreme emotion, is trying to find the best outcome for the children until there can be a more thorough investigation of all the relevant evidence.
I am also bearing in mind that the four children, who are the subject of these proceedings, they are not here to tell me what they think is best for them and obviously they can’t. They are too little, they are too small. This business is not really their business, although it affects them greatly and, as I said to you yesterday, I think, what I think these children need is they need a normal life.
But they cannot have a normal life because their lives have been turned upside down to a large extent, because their parents have separated. That must be very difficult for the parties concerned, but it is also very difficult for these four children because they probably do not understand such things.
There’s no probably about it, they will not understand these things because they are too young. They just know something awful has happened, their home has been sold, mum and dad are not living in the same household anymore and there is a lot of stuff going on which does not make mum or dad very happy and, I suspect, it does not make them very happy. So, as I say, I think what the children need is as much of a normal life as is possible in the circumstances.
By way of background, I think the parties were married [in] 2003 and there is no dispute, I think, that they separated on 9 May 2009. So that was after a six-year marriage. It is a significant marriage. It is a significant period of time and obviously it’s highly significant because it produced four children.
So there is a lot of adjusting for each of the parties to do. That is what the psychologists call it, adjustment. The parties have to get used to their new circumstances. I hope that happens sooner rather than later, but there is nothing I can do about it other than, as I said yesterday, to sympathise with the difficulties each is going through and say that as far as I can I sympathise with those difficulties.
But the process of adjustment is, I suppose, within each of the parties. How they cope with that process is up to them. Some people cope better, some people do not cope as well. For some people it takes a very long time, other people adjust quicker. Again, I am sorry about that.
In this case, at the interim stage, there are very many issues in dispute between the parties. It is practically impossible to find things about which they agree. There are some things and I will come to them in a moment.
But like most marriages, I suspect it had its happy times and I also expect it had its deeply unhappy times and it would seem to me likely more on balance than not that the last few months of the marriage were unhappy.
Anyway, it is the wife’s position that the relationship was a violent and abusive one and she says it was Mr Vecchi who was driving that abuse and violence. She categorises Mr Vecchi as being obsessive and controlling. She says that from time to time she suffered anxiety and she had to have antidepressant medication. There is some medical material that indicates that she was referred to a psychiatrist, and I will come back to that psychiatrist in a moment.
The husband’s position is that it was the wife herself who was the violent person. He describes himself as being very tolerant and understanding of what he, I think, categorises as her psychologically unbalanced behaviour from time to time. He deposes that he was attacked with a stiletto – I do not mean a stiletto knife, I mean a stiletto heel – by the wife in a fit of irrationality.
I emphasise at this stage, I do not know the truth or otherwise of who says what and who was the violent person, whether the wife was subject to a protracted campaign of control and domination which resulted in her becoming psychologically compromised or whether, as the husband has it, that the mother was subject to fits of extreme emotional outbursts where he, as best he could, had to protect himself from a woman who flew at him.
At any event, the parties separated in May and it seems to be the case that an arrangement devolved whereby the children would continue to live with their mother but see their father regularly on weekends.
There is some dispute between the parties as to whether the husband took all the four children or whether an arrangement evolved whereby he saw the two older ones and the two younger ones in a cycle of alternating fortnights.
At any event, it seems clear to me that the children remained more with their mother, after the parties separated and it seems clearly to be the case that Mr Vecchi was the family’s main breadwinner and although Ms Vecchi worked as a [omitted] at home from time to time, she was more involved with providing care for the children concerned.
Of course, that is not an uncommon way for people to divide their familial responsibilities - one parent being the breadwinner and the other being a homemaker.
It was, I suspect, difficult, this arrangement, after the parties separated and the husband’s position is that the mother was having difficulty coping with the four children of the ages of [W], [X], [Y] and [Z]. It is also his case that she was more interested in following her social interests and going about drinking to excess with her friends. He says he found about these things form the wife’s Facebook.
I really do not care what people put on their Facebooks, to be frank. I suspect, like photographs, Facebook entries may reflect a mood at the moment, which is transitory. You can have a photograph of a very happy child and after the photo is taken the child is unhappy. But the thing about Facebooks and photographs is that they just reflect a moment in time and people act up for the camera or the computer.
I think it would be unwise for me to act on the basis of what people put on Facebook. I think Mr Vecchi concedes that he is not fully aware of what was going on in the mother’s household after the parties separated. But it is his case that the children, [W] and [X], disclosed things to him and they were that mummy was pulling the children’s hair and was pinching them.
It is also Mr Vecchi’s case that the two older boys were becoming more and more reluctant to return to their mother’s care after they had been with him and I think he surmised from that, and as a result of what he discovered on Facebook and from others, that something was remiss in the mother’s household.
From the mother’s point of view, it is her case that she was finding it very difficult to get by financially. I think that’s probably likely to be true, given that both parties had to deal with living in separate households. They had all the burdens of four young children. There were issues about the child support assessment.
So I accept that the wife was likely to be worried about financial issues. I also suspect, and I may be wrong about this, that each of the parties perhaps is an emotional person, from time to time, and perhaps says and does things in response to personal emotions. So the whole thing was an absolute pressure cooker, I suspect, and the children would have responded to that.
Anyway, Mr Vecchi says that he was justified in not returning the children to the wife, after some incidents that occurred in mid‑November, which seemed to have involved the calling of the police. So they were serious enough for the police to come.

It seems clear that the children were exposed to those episodes and, as I said yesterday, the argument between the parties is not the children’s argument. Children do not respond well to fights and arguments between their parents. Anyway, that was the background to what I had to deal with yesterday, which was that Ms Vecchi had brought an application demanding that the children be delivered up to her by

Mr Vecchi.
It was her case that it was obvious that she had been the main carer of the children concerned and that there was a clear understanding that, when the children went to their father in November, they were to come back to her.
As such, she asserts that it was not a good piece of parenting, on the part of the father, for the children to be retained and not allowed to see their mother for what turned out to be about a month.
For a child of [Z]’s age, a month is a very significant period indeed and that must have some implications for the degree of attachment between the mother and [Z], but I do not fully know much about that at this stage.
The husband’s position was that he was perplexed about the children’s apparent attitude about not apparently wanting to go back to their mother. He says he had done the best he could to encourage them to return but he could not stand by with distressed and vulnerable children who said they did not want to go to see their mother.
Anyway, ultimately yesterday I formed the view that it was not in the best interests of the children to be estranged from their mother for such a long period of time and I made the orders that I did.
I have the report from Ms Hemphill. She describes [W] and [X] as being initially distressed, when they came into her (Ms Hemphill’s) care. [Y] apparently spontaneously went to mum and gave her a hug and that seems to have broken the ice so far as [X] was concerned. He gave his mum a hug and [Z], the baby, went willingly to mother’s arms and responded with smiles. So it seems that [Z] is perhaps more inoculated against the difficulty of the situation than the older children.
The boys talked to their mum about [W]’s birthday. They were worried about missing Superman at the birthday party which their dad had had organised. Ms Vecchi apparently reinforced to the boys that both she and their dad loved them very much.
Mr Vecchi left and the boys apparently became less distressed and they engaged in conversation with their mother. [W] sat on the floor and [X] and the others were physically close to their mother. Then the family left the building, [W] took his mother’s hand and gave her a hug and [X] was apparently pleased to see his uncle and was very excited.
So the exchange happened without too much difficulty and I suspect to some extent that was because the children had something of an emotional airlock between their father and their mother and they had the assistance of Ms Hemphill.
But, of course, she cannot do this every time the children move between their parents. As a result of Ms Hemphill’s evidence, I am less troubled by the father’s allegations, which are denied by the mother, about the children being abused or hurt by their mother. But I, of course, remain very concerned about the mutual allegations each had made about the other having been seriously violent to him or her.
It is now necessary for me to outline, as best I can, the legal principles I have to apply. I am sorry, it will take some time for me to do that. The irony of cases like this is sometimes when you’re just doing oral reasons for a decision, it takes longer to do that than for me to go away and write the reasons. I am sorry for that.
The provisions in the Family Law Act relating to children rest essentially on twin pillars. The first of those pillars is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm.
These two pillars are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in section 60CC(2).
When deciding what parenting orders to make, it is the best interests of the children which are the paramount consideration. In determining where those best interests lie the court must consider the primary and additional considerations set out in section 60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her. That presumption is set out in section 61DA.
The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may also be rebutted if the court finds that it would not be in the interests of the child for it to apply. In addition, at the interim stage, the court has a discretion not to apply the presumption if circumstances exist which make it inappropriate for it to be applied
If the presumption applies and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests. .
It is frequently the case that the court is called upon to make interim determinations, against a background of urgency, in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The same principles of law apply at both the interim and the final stage, the distinction being that interim hearings do not determine long-term arrangements for the care of a child, whereas final proceedings do.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and if possible, make findings about them. Accordingly, I now turn to the section 60CC factors.
I am satisfied that the children concerned have the potential to have a meaningful relationship with each of their parents. However, at this stage, I consider that there is a need for me to consider how the children can be protected from the physical or psychological damage which may occur from them being subjected to or exposed to abuse, neglect or family violence.
In this case both parties allege that the other has committed family violence against him or her and this has been something to which the children have been exposed. Accordingly, at this stage I think there do exist reasonable grounds, on which I can believe that one or perhaps both of the parties has engaged in some level of family violence.
The mother’s claims of being the subject of the husband’s controlling behaviour are supported by what she told her psychiatrist in 2008. However it remains the case that there is little independent evidence to support either party’s case that he or she has been the victim of the other’s violent behaviour.
Having said that, I appreciate that family violence is not homogenous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown, and is instantly regretted or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned.
Obviously, the latter type of behaviour is likely to be more damaging so far as children are concerned. Family violence is significant for children because children learn their behaviour from their parents and any parent who uses violence to resolve a dispute or who inflicts force on the other of a child’s parents is not an appropriate psychological role model for a child.
So in this case I am satisfied that there are significant issues to deal with family violence. Those issues will have to be explored further. At this stage, I have to make some sort of objective assessment of the degree of risk each party’s behaviour constitutes to the children. I think at this juncture, if the parties do not come into lengthy contact with one another and arrangements are made for the children to be exchanged between them, in a secure and controlled setting, there is a far reduced likelihood of the children being exposed to harm.
As I am not applying the presumption of equal shared parental responsibility, I do not have to consider whether the children should spend equal periods of time or substantially significant periods of time with each of their parents. However, I am still required to look at the various section 60CC factors to reach the outcome which I think will best serve the children’s needs.
In this aspect I consider the nature of the relationship of the children with each of their parents and, as I say, it seems more likely than not that in the past the mother has provided more care for the children than the father has. Given the volatility of the situation between the parents, I think the children need to live more with one parent than the other.
I also have to consider the ages of the children concerned, particularly the baby, [Z], and I think, given [Z]’s age, it is not viable for [Z] to be parented in an equal time arrangement. I think such an arrangement has all sorts of pitfalls and difficulties.
But I also have to consider how the children will have a sufficiently level of meaningful relationship with their father, who undoubtedly loves the children very much indeed and, as such, has much to offer them.
I think at this juncture, pending further inquiries, that such a meaningful relationship can be facilitated by the father spending regular periods of time with them, both on weekends and on special occasions, and there are a number of special occasions coming up.

I think it also appropriate that, when the new year has got under way, the father has an opportunity to spend perhaps some routine time with the children, on an overnight period.
I appreciate these orders are somewhat provisional and I am going to make an order for the parties to meet again with Ms Hemphill, who already has some knowledge of the children, having met them, pursuant to the provisions of section 11F, so that Ms Hemphill can provide some advice to the court as to how this matter shall best be dealt with.
That will occur in the period of the adjournment and on the next occasion I can give consideration to whether the children ought to be independently represented or what other inquiries should be made and if necessary, appoint a final hearing date not only for the children’s aspect of the case, but also the property proceedings.
So for those reasons I am going to make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: J Williams

Date: 18 December 2009