Vinkov and Mertiglio

[2009] FamCA 778

FAMILY COURT OF AUSTRALIA

VINKOV & MERTIGLIO [2009] FamCA 778

FAMILY LAW – CHILDREN – Best interests – allegations of abuse and deliberate alienating behaviour – where child shown to be anxious – the need to restore and continue the relationship between the child and the mother – variation of interim parenting orders

Family Law Act 1975 (Cth) s 60CA

APPLICANT: Mr Vinkov

RESPONDENT: Ms Mertiglio

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: SYC 5345 of 2008

DATE DELIVERED: 21 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 21 August 2009

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms J. Franklin-Bell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Kensell

Orders

1. That the Mother have periods of time with the child of the parties in accordance with the orders made 19 December 2008 and 23 February 2009 further varied by changeover of the care of the child from the Father to the mother to take place via the maternal grandparents or either of them and that such grandparents will then pass the child to the care of the mother. 

2. Such periods of time be spent with the Mother under the supervision of both or either the maternal grandparents at the Mother’s home or the home of the maternal grandparents and in the event of the period of time being less than that otherwise provided in the Orders to which I have referred then the Mother shall cause the Father to be informed of the relevant period of time in which she will be having the child in her care so that he may ensure that he is available to collect the child from either of the maternal grandparents at the conclusion of that time. 

3. That the Father is restrained from initiating any telephone call or text message or other communication to the child whilst the child is in the care of the Mother and/or maternal grandparents.

4. That the Mother ensure that the child initiates a telephone call on one occasion during each day that the child is in her care such telephone call to be from the child to the Father.

5. That each of the parties is restrained from making any derogatory or critical comment about the other or any of the parties’ relatives or friends to or in the presence or hearing of the child.

6. That the first occasion of such periods of time in accordance with the Orders made this day take place on Friday 28 August 2009.

7. That a Family Report be prepared expeditiously by Ms B, Family Consultant to report on the matters set forth in the Form of Order dated today and signed by Justice Rose.

8. That liberty is granted to apply on seven (7) days written notice for the purpose of an application being made to vary the directions or to set aside, vary or suspend any of the parenting orders made this day.

9. That the parties do all things necessary for the purpose of attending all interviews sought by the Family Consultant upon reasonable notice and use their best endeavours to ensure that any other significant person such as maternal grandparents also attend upon Ms B.

10. That the parents ensure that their child also attend upon Ms B as requested by her.

11. That each of the parties is restrained from saying or doing anything which may influence the child to behave in a certain fashion or to provide information to Ms B other than in accordance with her request.

12. That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 5345 of 2008

MR VINKOV

Applicant

And

MS MERTIGLIO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The substantive proceedings were listed before me today for the purpose of the first day of the less adversarial trial procedure.  The litigation between the parties has a considerable, intense history as is evidenced by the number of Court events, Orders and directions made including various interim parenting orders. 

2. The issues before me represent, in essence, a balancing of the need to restore and continue the relationship between the child of the parties, a son, born in November 1999 (“the child”) with his mother in circumstances which will provide so far as it is possible to do so a positive, relaxing atmosphere for the child, bearing in mind the untested cases of each of the parties which have for a considerable period of time been the underscoring factors which have led to a very young child being anxious and implicitly traumatised to such an extent that he has been having counselling from a psychologist. 

3. The case for the father is that the cause of the child’s anxiety is the mother’s alleged physical and verbal abuse of him.  The case for the mother is that the cause of the anxiety is solely due to the father’s deliberate alienating behaviour whereby he has instilled for his own personal reasons antipathy by the child to the mother. 

4. The evidence before me today is represented by the parties’ respective parenting questionnaires, a child assessment memorandum dated October 2008 prepared by Ms B, Family Consultant, as well as the parties’ own oral evidence. Further evidence was given orally by Ms B in terms of her observations of not only the harmful effect upon children of continued and deep-seated parental conflict, but her observations as well on particular issues that each of the parties have raised. 

5. The parties agreed that it will be necessary to have a comprehensive expert’s report prepared by an appropriate professional.  The alternatives in that regard were canvassed.  Ultimately, it was not opposed that the family report be prepared by Ms B, rather than an expert’s report by a psychiatrist.  The latter is not practical or arguably necessary given that a psychiatric issue was not raised in the proceedings, quite apart from the delay which will be occasioned compared to a family report, as well as the cost of such an expert’s report, which neither party has suggested that he or she would be able to meet.  Indeed, the approach for a family report by Ms B was supported by the Independent Children’s Lawyer.

6. On 19 December 2008, Loughnan JR made a number of interim parenting orders.  They included, but were not limited to, periods of time to be spent by the child with the mother during school term, on alternate weekends from 3 pm or after school on Friday until 9 am or the commencement of school on Monday or Tuesday, in the event that Monday is a public holiday. 

7. The child for some considerable time has been living with the father.  The place of changeover of the care of the child at that time was ordered to be at McDonald’s at L.  Subsequently, on 23 February 2009, Cohen J varied those orders to substitute the maternal grandparents’ home for the previous place to which I have referred.

8. As I emphasised to the father who is representing himself at this stage, the mother’s solicitor and the Independent Children’s Lawyer, one matter remains the subject of agreement.  That is that this young child has shown himself to be anxious and possibly traumatised.  The fact that historically, he has spent considerable periods of time in the care of the mother without any issue being raised is of little comfort, so far as the child is concerned.  My focus must be on the best interests of the child, having regard to the limited extent of the evidence that is before me, rather than what is in the best interests of each parent. 

9. That is not to say that parents’ interests are unimportant; quite to the contrary.  However, where they can not agree on important matters and where each have made serious allegations which could not, at this stage be tested, then I will be seeking to balance ensuring that the child is not exposed, so far as it is possible to do so, to further emotional pressure and yet, on the other hand, taking such steps that are able to be taken from a practical, realistic viewpoint to ensure that the child’s relationship with the mother is re-engendered in accordance with the interim orders, subject to any possible variations.

Conclusion

1. I have carefully considered the submissions made by each of the parties.  Underscoring those submissions is the case that each of them brings.  That case appears to be fixated on their view of historical events, rather than being focused almost exclusively on what is the current position as far as the child is concerned and the orders at this stage which are more likely to promote his best interests.  

2. It should follow without much explanation that Orders of the Court based on the evidence that is before it, as in this case significantly limited, should be directed to limiting the risk to a child of further trauma, rather than have Orders made which are tailored on historical events as if the current situation in terms of this child has not occurred.  The fact that the child may have been brought to this stage by the actions of one party or the other is of little comfort.  The reality is that there is a young child who is very anxious.  The reasons for his anxiety can not be tested today and will have to be fully tested on another occasion, aided by an independent expert’s report.  In that regard, I will make an Order for a report to be prepared by Ms B, Family Consultant, to be completed as soon as possible so that upon its completion and release further dates for hearing can be fixed. 

3. In the meantime, I have determined that the interim parenting orders made on 19 December 2008 and as varied on 23 February 2009 will continue, subject to a further variation of them which will provide for the child to be collected both prior to the commencement of each period and returned to the father by the maternal grandparents or either of them.  Further that the period of time referred to in the order of 19 December 2008 may take place at the mother’s home and/or at the home of the maternal grandparents, notwithstanding that on the mother’s evidence, which I accept, the home of the maternal grandparents may not be entirely suitable, due to what she referred to as “issues” which apparently exist.  I do not have further information or evidence as to precisely what those issues are.  Whatever they may be, it is clear that the mother has concerns that the atmosphere in that home may not always be suitable.  If it was possible to achieve perfection as far as these orders are concerned, then I would do so.  Unfortunately, I can not.  I have limited evidence before me.  Consequently, there must be a concentration on the balance to be achieved of the two matters to which I have earlier referred.

I certify that the preceding eleven (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  27 August 2009