Gates and Gouros

[2007] FamCA 684

FAMILY COURT OF AUSTRALIA

GATES & GOUROS [2007] FamCA 684

FAMILY LAW - CHILDREN - With whom child lives - Very young parents of six month old baby - Interim orders

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286, (2007) 36 Fam LR 422

APPLICANT: MS GATES

RESPONDENT: MR GOUROS

FILE NUMBER: MLC 7665 of 2007

DATE DELIVERED: 6 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Melita

SOLICITOR FOR THE APPLICANT: David Stagg Tonkin & Company

COUNSEL FOR THE RESPONDENT: In person

Orders

In the matter of Gates v Gouros, I make the following orders:

1. That the further hearing of the mother's application in a case filed 6 July 2007 be adjourned to 9.45am in the Senior Registrar's list of cases.

2. That as a matter of urgency an Independent Children's Lawyer be appointed.

3. That the parties attend upon a counsellor with Relationships Australia as soon as practicable and preferably prior to the return date.

4. That the solicitor for the mother forthwith make the appointment with Relationships Australia and advise the father by telephone of the time, date and address of the appointment.

5. Until the return date, the child a son, born in December 2006, live with each of the parents in the following sequence:

   (a)from this moment until 9 am on Sunday, 8 July 2007, with the mother;

   (b)from 9 am on Sunday, 8 July, until 9 am on Tuesday, 10 July, with the father;

   (c)       from 9 am on Tuesday, until 9 am Thursday, with the mother;

   (d)       from 9 am on Thursday, until 9 am Saturday, with the father;

   (e)then from 9 am on Saturday, until 9 am on the following Monday, with the mother.

6. I make the usual order that the Court release the child to the mother forthwith.

7. I make orders that the father file any material upon which he intends to rely by no later than 4 o'clock on Wednesday, 11 July 2007.

8. I further order that the mother file any material upon which she intends to rely by no later than 4 pm on Friday, 13 July 2007.

9. I order that for the purposes of all of the handovers of the child to either parent, the maternal grandfather deliver the child at the commencement of the period, and the father collect the child at the conclusion of the period.

10. I make the usual orders under s 65DA(2) and s 62B.

11. I order that the reasons be transcribed, a copy be placed on the Court file and that the parties have a copy in due course.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7665 of 2007

MS GATES

Applicant

And

MR GOUROS

Respondent

REASONS FOR JUDGMENT

1. This is 4.15 pm on Friday, 6 July, in the Judicial Duty List.  Earlier today I was asked by the mother in these proceedings to make a recovery order.  Having regard to the nature of the allegations and the age of the child, I declined to do so but ordered that the father who had possession of the child bring him to the child care centre here at the Court and, as a consequence of him doing that, I have had the opportunity to put in place some orders until the matter can be properly determined by the Court.

2. In the last hour, however, I have only had the opportunity of gathering together some brief material from the father who obviously has not had time to file any written material, but he understands that the answers to the questions I have put are being recorded and he has spoken to a solicitor whom he proposes to instruct but that solicitor has indicated that she wants some time to prepare material.  Having regard to the urgency of the matter and the circumstances which seem to be common ground about how the separation occurred, I have decided to put the matter back to the Senior Registrar's list of cases on Monday week, notwithstanding that list is already full, on the basis that there are very contentious issues here and I have been unable to decide on any of the evidence just what should happen to the child.

3. I want to make it clear that I am not making an order out of mere convenience.  I also want to make it clear that I have not determined the matter in the orders that I have pronounced on the basis of fairness to the parties.  I have made the decision based upon the fact that I do not have sufficient evidence about how this child would cope being away from either of the parents, both of whom not only make accusations against the other but each purports to say that the other parent is incompetent and has not been significantly involved in this little boy's life.

4. Having said all of that, I am dealing with an application in relation to the parties’ son who was born in December 2006.  He is clearly only a baby aged six months.  The dispute is difficult to get to the bottom of and in fairness to the mother her material was drawn on the basis of an application for a recovery order, and I have already indicated that I would have declined to have made that order.

5. The mother's position is that she has been living with the child since birth and that the question of her capacity is not something that she would concede as a problem.  She says that the relationship is now at an end.  She deposes to the fact that at 1am on 5 July she was effectively thrown out of the house in which she had been living with the child since his birth.

6. The father tells me from the bar table that that is not the case.  He says that although there was an argument the mother left.  What does not seem to be disputed, however, is that the mother says that she has been prevented from having the child back.  The father told me that the mother wanted the child and that he is not now prepared to hand him over, notwithstanding that at the time he was prepared to do so.

7. I am unable to make any findings of fact, nor should I, in relation to issues, such as domestic violence between the parties and even their capacity as parents.  What seems to be clear, however, is that for the bulk of the last six months the mother has lived in the same household, although the father says there were some times when she was not there.  The other problem that I foresee is that the father concedes that much of the parenting of the child has been done by his father.  To some extent that must have been what occurred because of the fact that he was working.  He is engaged on a full‑time basis in employment but now says, having regard to what has happened he is going to give up his work, or work around the child, and therefore care for the child.

8. The father tells me from the bar table that the mother is an unfit mother.  When I challenged him to explain that he says that she tells him so and that she does not want the role.  Certainly in respect of that latter issue, nothing could be further from the obvious truth because she is here today in full force seeking the return of her son.  All of these matters need to be fleshed out in some detail, and I appreciate that each party will no doubt put together an affidavit setting out their position and the Court will ultimately have to somehow or other determine the matters based on the material placed before it.

9. To that end I think it is appropriate in the circumstances to try and put in place some avenues which might just give the Court either a better snapshot into this little boy's life or at least something that the parties can work on in the future.  To that end I have made an urgent appointment for an Independent Children's Lawyer who can make the inquiries that obviously the parties may not want to do and the Court cannot.  I have encouraged the parties to go to a counselling appointment, not to talk about their relationship but to talk about the child.  Although the father is reluctant to do that I think it cannot do any harm and I will propose that an order be made that that occur, notwithstanding his reluctance.

10. I have made it very clear to the father that this is a set of orders that are not an invitation to treat.  They are orders of the Court and they carry sanctions for failure to comply.  I have also warned the father in the presence of the mother - and I have directed these remarks to him because the mother is legally represented - that breaches of these Court orders will be not only severely considered by the Court but they may significantly affect the ultimate outcome of the proceedings.

11. As I have said, I cannot determine just who has had the primary care of the child over the last six months since birth, but I am told that it was in a household at which the father’s father appears to have lived and seems to have had some part in this little boy's life.  Sadly, on the mother's side, there does not appear to have been any relationship between the maternal grandparents and the child, but that now must start to be developed because she is going to be in the household with them.  I endeavoured to ascertain just what the nature of the relationship was and I am not surprised to find that neither side seems to have a lot of respect for the other and perhaps with good reason, but at least the maternal grandfather is prepared to put down the cudgels and speak to the father on a civil basis, and the father in return to the maternal grandfather, so that a proper handover can occur in circumstances where this little boy is not distressed further than what he probably already is.

12. I have not ignored the fact that this child is very young and is right in the middle of the attachment stage of his life.  I am very conscious of the fact that the absence of an attachment or the removal of that attachment has enormous emotional consequences for this little boy.  Having regard to what has happened in the last 24 to 48 hours I think it is important that the whole situation be put on hold and these two very young parents be given an opportunity to rethink the future of this child, having regard to the fact that even though they do not like each other, this little boy has a long parenting future ahead of him with them.

13. Interestingly enough, each party has a view about the other's parenting capacity.  The mother agrees that there should be some substantial time between the child and the father; the father says the same in reverse, notwithstanding he says that she is not a competent mother.  When I asked each parent to put effectively a proposal, the father’s proposal was that the mother could see the child every second day from 1 o'clock to 6 o'clock, but if the reverse was to occur he wanted to see the child on every day.  There did not seem to me to be a lot of logic in all of that. 

14. My view is that this little boy will go through a confusing situation in the next seven days and it may very well be that a court on the next occasion is not much better off than what I am today in terms of information.  It may be that someone will present some expert evidence to suggest that it is critical that one of the parents have the full‑time care of this child because of the very things that Ms Melita says are necessary for his welfare.  There are issues such as child teething problems, and those are matters that I suspect this little child will have to deal with, with or without the assistance of his parents, over the next seven days.

15. In my view this is one of those cases where I have to fly somewhat blind, and on the contrary I am very conscious of the fact that the starting position, even on an interim basis, as the Full Court said in Goode and Goode (2006) FLC 93-286, (2007) 36 Fam LR 422 is that I should apply the presumption. However, for the purposes of the Family Law Act 1975 (Cth) (“the Act”) I say that on an interim basis it would not be appropriate for me to apply the presumption of equal shared parental responsibility here because I do not have anywhere near enough information about which I could determine that such a decision would be in the best interests of the child.

16. I do, however, have to look at s 60CC of the Act, and I have contemplated all of those matters. I will not make specific findings in respect of each of the subsections but my thoughts in respect of each of the subsections have been around some of the matters that I have just mentioned. This child is very young and as such views are not relevant. I am not at all confident that I understand the parenting capacity of each party. I am very conscious, however, that under s 60CC(4) a court is obliged to take into account what each parent does in respect of fostering and encouraging the relationship of the other with the child, and in particular how each of the parents facilitates the relationship of the child with the other.

17. It would do certainly the father some good to understand that this is not a war between he and the mother but rather a decision about what is in the best interests of his son and her son.  I am mindful also of the fact that the father is just 22 years of age and the mother is not even 18 yet.  Were it not for the fact that I am advised that she understands very clearly what the situation is in terms of the case, it would have been a case where I would have contemplated having a guardian appointed to run the case for her, but Ms Melita tells me that that is not necessary.

18. In the circumstances I am quite satisfied that although the proposals put by the parties and the orders that I have made are far from satisfactory, I have little choice but to give this little boy into the care of each of his parents for the one week - or just over - only.  I make very clear to both parties that when the matter comes back before the Senior Registrar, as it will on Monday week, the Senior Registrar may very well take a view that on the material it is appropriate for the normal situation to apply where one parent of a very young baby cares for the child, and the other person has limited time. 

19. To that end, I have made orders that are very tight in terms of time for the filing of material.  It is important that that material be as voluminous as possible so that the Senior Registrar has as much information as possible available to him.  In the circumstances, doing the best I can with very limited information, I say that these orders are in the best interests of the child.

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  12 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GATES & GOUROS