Verini Roberto & Roberto

[2008] FamCA 106

FAMILY COURT OF AUSTRALIA

VERINI-ROBERTO & VERINI [2008] FamCA 106

FAMILY LAW – CHILDREN – Consent orders for children to spend time with mother before leaving the country

Family Law Act1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT: MRS VERINI-ROBERTO

RESPONDENT: MR ROBERTO

FILE NUMBER: MLC 3506 of 2007

DATE DELIVERED: 14 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.N. Hoult as amicus curiae

COUNSEL FOR THE RESPONDENT: Mr D. Cronin

SOLICITOR FOR THE RESPONDENT: Rigoli & Associates

Orders

BY CONSENT IT IS ORDERED

1. That order 5 of the orders made on 29 January 2008 be varied so that the three children

   P … born … May 1994
                 T … born … February 1996
                 C … born … March 1999

   spend time and communicate with the mother from 4.00pm this day until 2.00pm Wednesday 20 February 2008 and the children be collected and returned from outside the … Police Station.

2. That all extant applications be dismissed.

3. That there be liberty to apply by either party by telephone mention on an urgent basis before Justice Cronin.

4. 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 Verini-Roberto & Roberto is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3506 of 2007

MRS VERINI-ROBERTO

Applicant

And

MR ROBERTO

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by the wife into the duty list today.  It has been abridged for reasons which will become apparent.  The application by the wife was prepared by herself, and I have had the usual invaluable assistance from Mr Hoult who appears as amicus curiae.  Mr Hoult also appeared at the hearing to which I shall refer.  The application before me today was ostensibly to stay the operation of some orders that were made on 29 January 2008.  In simple form the wife wanted to have me stay an order that permitted the husband to take three children out of Australia to Uruguay.

2. She says that if that order was carried out, then as a result of things that have happened since 29 January she would have no guarantee that the father would ever comply with orders once he is in Uruguay.  I digress here to say that I am not confident about what the husband will do, but I have no hesitation in saying that Uruguay would certainly be assisting any relationship between mother and children having regard to the requirements of the Hague Convention.

3. Going backwards therefore, on 29 January 2008 the parties appeared before Mushin J in what was to have been the first day of a trial.  There was an Independent Children's Lawyer represented as well.  The parties consented to orders that the father be permitted to take the three children P, who was born in May 1994 and is therefore coming up to 14 years of age, T who was born in February 1996 and is therefore turning 12 and C who was born in March 1999 and who therefore in a few weeks time will be nine.

4. The order provided that the airport watchlist be removed to enable the father to take the children out of the country.  There are no provisions in the order about precisely what time the children are to have with their father once they are in Uruguay because the provision is still to be by agreement notwithstanding that there were to be times during school holidays.  The wife says that having regard to what has occurred, she has no confidence that those orders will be carried out and she will be back in court again.  What seems to have caused the problem is that the orders also provided that between 29 January and … February which was the anticipated date that the children would be leaving, the mother was to have time with them.

5. I was told and it was not disputed that on 31 January the mother did have the time with the children but returned them early because they were "unruly".  That appears to have been a problem throughout the period prior to the orders being made, and what I expressed concern about was that even if I stayed the orders and the children remained, there was no guarantee that the unruly problem would go away and that there would be a relationship otherwise between the mother and the children.  It seems that after that particular episode on 31 January another attempt was made pursuant to the orders of 29 January, and that turned out to be unsuccessful as well.  That precipitated the mother's application.

6. The father's response to the mother's application is to say that it is not going to get any better and that the orders should remain.  The sad fact of life here is that the children are caught right in the middle of this not knowing whether they are coming or going and no doubt that is exacerbating the relationship between mother and children.  I had the matter stood down so that the parties could contemplate what they were going to do having regard to my indication that I saw problems with the mother's application having regard to the Full Court decision in Rice and Asplund (1979) FLC 90-725. It seems to me that the mother could not have succeeded in setting aside the orders at this particular point in time, and therefore to stay the orders in the meantime would be nonsensical.

7. As a result of some very cooperative assistance from counsel, the dialogue has then turned to what is to happen between now and 20 February.  The parties still could not agree on what to do.  What I have decided is that the children will spend time with their mother from 12 noon tomorrow 15 February until 12 noon on Tuesday 19 February.  That in itself is not sufficient because one of the things that the orders of 29 January contemplated was for the mother to spend time with the children specifically because the anticipated day that they would be probably leaving, was T’s birthday.  I still think it is very important that T have some time not only with her mother but with her siblings around her so that the relationship can be at least fostered, if not cemented.

8. I therefore propose to make an order that the mother spend time with the children from 10 am until 4 pm that particular day.  One of the problems that has arisen is that there are undoubtedly arrangements still to be made about the children leaving Australia including the fact that they need visas and passports.  The Consulate of Uruguay is apparently in Sydney, and the husband has already started making arrangements for replacement passports because the old passports have not been delivered to him.  In my view what should happen is that the husband makes whatever efforts he can today and up until lunchtime tomorrow, to get all of those issues sorted out.  If by some chance there is still an unresolved problem that requires the attendance of the children with the husband, then I will give liberty to either party to make a telephone mention on an urgent basis through my Associate on one day next week in which I would contemplate - and I stress only contemplate - reducing the amount of time on either of the two periods to which I have mentioned, but I would want to be convinced that it was necessary to enable some particular bureaucratic issue to be sorted out.

9. I have stressed to the parties this morning and I repeat now, that I want these arrangements to work for reasons that I will come to in a moment from a legal perspective.  If I was satisfied that one party was not doing the right thing by the children and that the relationship in the future was never going to work contrary to what as it had been anticipated by the parties in the orders on 29 January, it would be something that I would seriously contemplate so that a stay might be granted.  I would only however do that as a matter of last resort.  As I have already said, the children in this case are no doubt caught in the turmoil not knowing whether they are coming and going, whilst at the same time watching their parents fight about them.  I want to make it very clear that both parties can say that the judge today has determined that the children are going to Uruguay on the morning of … February and that the time that they are to spend with their mother is to enable them to enjoy her company as well as cement the relationship for the future.

10. The orders that I have been asked to make are simply parenting orders.  I am at large about what orders I make provided that I am ultimately satisfied that it is in the best interests of the children.  I have not had the benefit of reading all of the background material that the parties know well, but I have had a short version of the problems given to me by both counsel.  What is clear is that if I am making a parenting order then I am obliged to follow a path relating to the question of equal shared parental responsibility.  I do not need to go down that path in this case because the parents have already agreed to an order that they have equal shared parental responsibility.

11. The bizarre thing about that of course, and the parties are hearing this from an extempore point of view, is that they are here today not being able to agree about a whole raft of things.  It is up to them to sit down as parents of these three children in the foreseeable future even if it is in two different parts of the world, and work out how they are going to make decisions about the future of their three children.  They have agreed in the face of the court to make an order to that effect. 

12. The next issue that I have to address from the pathway, is that any parenting order must be in the best interests of the children, and to help me determine that I have to turn to the matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). Two primary considerations in every case set out in that part of the Act, relate to the benefit the children will have from a meaningful relationship with their parents, as well as the necessity to avoid the children being involved in abusive or violent situations. I am not suggesting that either of these parents would be violent or abusive towards the children but children are emotionally sadly affected by watching what goes on, and if the parents cannot work out how to behave then the children will obviously pick up bad habits.

13. In this case the question that I am very concerned about, and the reasons that I am making the orders that I have, is that I want these children to have the benefit of a meaningful relationship with their mother as well as their father even though it may be from afar, and to help cement that relationship the orders I am proposing to make should give the children some opportunity to get that started.  However, as I have stressed to the parties, it requires both of them to work positively towards that occurring.  I do not want to hear in the future that one party stepped back with arms folded and said it was nothing to do with them, it was a choice of the children.  The children should not be put in that position. 

14. The other aspects which are additional considerations in s 60CC in this case do not really assist me. They apply in circumstances where there are arguments about parenting capacity and the ability of parents to provide for their children. All of those issues must have been canvassed between the parties culminating in the orders being made on 29 January, and I have no evidence before me today to suggest that there is any change in that circumstance. Accordingly, the thing that I have been most concerned about is to ensure that the children have some certainty about their future whilst at the same time having an opportunity to develop a relationship with their mother knowing that there is going to be a geographic separation. It behoves both parents to do something about that.

15. The father has made an application on the basis of the orders that I have just made. I do not propose to make an order for costs. Section 117 of the Act sets out that each party is responsible for bearing their own costs unless the circumstances justify a departure from that provision. This is a case where whilst one of the provisions of s 117(2A) might suggest that I could be satisfied that one of the parties was wholly unsuccessful but I doubt that very much. This is a case that was crying out for a resolution unfortunately not achieved on 29 January for the reasons that I have outlined in my earlier remarks. On that basis, in my view it was appropriate for both parties to be here and for the mother to make the application she did. In those circumstances I would not be prepared to exercise my discretion and make an order for costs in favour of the father.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 February 2008