Gitarra and Heta

[2009] FamCA 513

FAMILY COURT OF AUSTRALIA

GITARRA & HETA [2009] FamCA 513

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Mr Gitarra

RESPONDENT: Ms Heta

FILE NUMBER: SYC 2265 of 2009

DATE DELIVERED: 6 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 6 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Armstrong Legal

SOLICITOR FOR THE RESPONDENT: Schultz Toomey O'Brien Lawyers

Orders

1. That within 2 months of the father establishing a fund of $17,500 in a controlled monies account to be applied on the joint authority of the parties and for the purposes of these orders, unless the parties otherwise agree, the wife cause the child … born … September 2007 to reside within 20 kilometres of the father’s residence in Sydney and to remain within that area pending further order of the Court.

2. Unless the parties otherwise agree that fund is to be applied to the payment of:

   a.all rental bond of not more than $1,400.

   b.as required to the payment of re-current rent at a rate of no more than $350 per week.

   c.on invoice or by agreement of up to $600 towards removal costs.

   d.for the purchase on invoice of household appliances, furniture and contents for the wife’s household.

3. That the child … born … September 2007 live with the mother.

4. That the child spend time with the father subject to his availability, at least once a week on no more than one overnight occasion a week and such overnight occasions to be subject to the requirement that the paternal grandmother or some other person agreed between the parties is also present.

5. Leave to the parties to provide a Minute of the detail of the father’s time in Queensland and/or in Sydney for the purposes of these orders being terms agreed between the parties.

6. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the … born … September 2007.

7. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as practicable for appropriate representation for the child.

8. The solicitor for the mother advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order.

9. Each party make available to the Legal Aid Commission of New South Wales, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

10. It is noted that the parties have considered the appointment of a single expert and that that appointment only be made after the appointment of the Independent Children's Lawyer has taken effect.

11. Leave to the parties and to the Independent Children's Lawyer to restore the matter to the list on giving 7 days’ notice to the Court and to the other parties.

12. Orders are made in terms of paragraphs 13-21 inclusive of the document titled “Form of Orders”, as set out hereunder, pending further order unless the parties agree to the contrary in writing:

    “Medical:

    13.That if [the child] is hospitalised or receives medical attention, the party who has care of [the child] at that time will notify the other party as soon as is reasonably practicable after the initial attendance with the medical practitioner, medical centre or hospital, with that notification to include details of the illness, injury, treating doctor, the prognosis and treatment, if known.

    14.That the parties consult in relation to [the child’s] attendance on any medical specialist, including any specialist medical practitioner, dentist, orthodontist, speech pathologist, occupational therapist or other therapist ("Consultant") AND THAT:

    a)In the event that [the child] is referred to a Consultant, the party who obtains the referral shall inform the other in writing as soon as is reasonably practicable after obtaining the referral of any specialist medical appointments;

    b)The party who obtains a referral do all things necessary to ensure that the other party is provided with copies of any test results, letters of referrals, reports and letters received from and by the Consultant;

    c)Both parties be permitted to attend on such appointments, with those attendances to be at the sole discretion of the Consultant and such attendance may be in person or by telephone or other electronic device; and

    d)The party who obtains the initial referral or appointment time shall, as soon as possible after the initial appointment is made and at least fourteen (14) days prior to the first appointment, authorise the Consultant to discuss the referral with the other party.

    Specific orders:

    15.That the parties keep each other informed as to their current residential telephone number, mobile telephone number, email address and residential address, within 2 days of any such change.

    16.That the parties do all things necessary to enable [the child] to communicate with the parties via Skype, including making a computer and Internet facilities available and assisting and facilitating [the child] to communicate with the parties via Skype.

    17.That the parties are restrained from denigrating the other party or other members of their respective families in the presence of [the child].

    18.That the parties are restrained from discussing the proceedings and/or the proposed relocation to Queensland with [the child].

    19. That both parties have authority for each school or day care facility attended by the child to allow each of the father and the mother to undertake parent/teacher interviews and to discuss the education of the child, to forward to each of the father and the mother copies of all school reports and notices concerning activities to be undertaken by the child, with any documentation provided to either parent to be at the expense of the parent requesting same and to permit the father and the mother to attend school sporting activities.

    20.That both parties have authority for each medical and dental practitioner to discuss and supply to each of the father and the mother reports as to the health of the child on an ongoing basis.

    21.The parties agree to utilise a "communication book" which the mother will deliver to the father at the commencement of their time with the child and the father will return at the conclusion of their time with the child. The book shall include:

    a)Start and finishing time and location of any extra-curricular activity that the children are scheduled to attend during the period of time they spend with the father;

    b)     Any special medication the children require;

    c)Any special homework, assignment or school work the children are required to attend to;

    d)Any other activities or events of which the other parent should be aware; and

    e) A list of preferred medical practitioners.”

13. The Court noted that the financial aspects of Orders 1 and 2 are by way of conditions on parenting orders and are not orders for interim maintenance.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2265 of 2009

MR GITARRA

Applicant

And

MS HETA

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child; September 2007 she was born and is 21 months of age.  I understand the father is 33, the mother is 32.  I think they met in 2006 and started to live together in November of that year. They came to Sydney, from Queensland, in January of 2007. The child was born in Sydney. The parties separated on 18 March this year, when the mother and child moved to Queensland.

2. The parties have seen a Family Consultant, for a dispute resolution conference.  The mother attended by telephone. The resultant memorandum notes:

   ·    that there was some agreement about time to be spent between the father and the child but not about anything else;

   ·    the mother refused to return the child to Sydney permanently, or in order to spend time with the father;

   ·    the mother was seeking that the father's time with the child be spent in Queensland and be supervised;

   ·    the parents have agreed the child will communicate with the father by Skype.  Each evening at 6 pm the mother was to dial the Skype number and the parties told the counsellor they each had the necessary details;

   ·    the mother agreed to the father spending time with his daughter that weekend ‑ this was in April ‑ if the father could get flights, for three hours of each of the Saturday and Sunday of the weekend, at the paternal grandmother's home;

   ·    a judicial decision is required;

   ·    there were no other recommendations. 

3. As to the competing proposals: the father sought that an Independent Child Lawyer be appointed; that Dr W be appointed to provide a report; that the parties complete post‑separation courses; that there be equal shared parental responsibility; that the child live with the father; that if the mother lives in the Sydney metropolitan area, that the child spend 9 am to 5 pm Monday to Friday with the mother the hand-over at McDonald's, and otherwise, as I say, the child would live with the father. He also seeks orders in relation to medical matters, keeping each other informed about things, being restrained about denigration, and the establishment of a communication book. 

4. I think some of those things are matters that would require agreement. 

5. The mother seeks that the child will live with her; that the parents have equal shared parental responsibility; that the mother be permitted to reside with the child on the Sunshine Coast; that until the child is five years of age, the father spend time with the child alternate weekends between 10 am Saturday and 4 pm Sunday at the paternal grandparents' residence, provided the father's mother is present at all times. The mother proposes that she do the delivering and collecting. She seeks different orders to apply after the child’s 5th birthday onwards, which don't concern us today. The mother too seeks that the parties implement a communication book. Further orders are sought in relation to what I understand is a claim for maintenance and orders in respect of arrears of child support. 

6. I am to make orders in the best interests of the child. The legislation makes reference to the things one refers to in that regard. In particular:

7. The child is very young. I think a finding is possible that the mother has been the primary caregiver of the child. That is not an unusual arrangement in our society. As to the intensity and success of attachments between the child and her parents, that is something that we will only know sometime in the future.  No observations were made by the Family Consultant in relation to the child. 

8. The orders sought by the parties suggest that the child has a good enough relationship with each of the parents. 

9. As to the willingness of the parents to facilitate a close relationship between the child and the other parent, there is the fact that the mother took the unilateral step of moving the child to Queensland. That frustrated a close relationship between the child and the father and it makes life very difficult.  A child of this age does not have an adult understanding of time so a fortnightly arrangement is not an arrangement focussed on the needs of the child. It is possible that such an arrangement will impair the development of the child’s attachment to the father.

10. As to the likely effect of the change in the child's circumstances, there are a couple of changes in issue. One, is the change the mother made by relocating, and the other is the change that would occur if the child was not to live with the mother, and really. Care is needed in relation to both issues. The child is very young and is not capable of any self‑protection. Prior to separation the parties' arrangement had the child with the mother. If I put in place an arrangement whereby it is not practicable for the mother and the child to be regularly together, then that is likely to have an impact on the child. 

11. Those concerns would give way to necessity. If a child was going to starve to death living with a primary care giver then you would change that arrangement but there is nothing of that nature here. 

12. The practical difficulty and expense is obvious.  Travel between Sydney and Queensland is expensive.  The father has an income.  The mother does not.  She previously had an income from part‑time employment but not the sort of income that would fund fortnightly flights. 

13. As to the capacity of the parents, I can make no finding about that issue. Again, the proof is in the eating of the pudding about that.  We will find out at some time in the future. 

14. There is evidence suggesting that there have been aspects of the parties' relationship that would not be in the best interests of the child; that the parties have themselves been under pressure. If they were not able to protect the child from those circumstances then that would not have been in the best interests of the child. I cannot make a finding about it. 

15. As to the characteristics of the child, the child is very young. 

16. As to the attitude of the parents to their responsibilities, again I cannot make findings about that.  There are bare assertions made in the documents and one can be critical of what has happened. Broadly, the mother's case is: she was under increasing pressure in the relationship; she does not have adequate family support in the Sydney area; she did not have financial independence; she got to a point where it was too much and she took the child to Queensland. She suggests that the initial move was to allow her to think about things but basically that is what has happened. The father’s case is that he did not exercise any level of financial control over the mother; there was no aspect of his behaviour that made life impossible for the mother; she has just taken this step in a selfish way or as a mechanism to get away from him. 

17. I am not permitted to elect one version of the facts over the other. We have Court hearings to decide what is the truth of things and parties go into the witness box, give their evidence, and there is testing of that evidence by cross‑examination. At a final hearing there is often independent opinion evidence from experts so a decision maker can make a considered assessment of the facts. I am not permitted to say "Well, I like the look of you or you and I think you are more likely to be telling the truth".  The legal position in relation to hearings on the papers is, I am not allowed to make a finding of fact on a disputed issue of fact without independent material that excludes one version of events or wholly supports the other. There is nothing like that here. 

18. Stepping back from the detail we have a precious young girl and two loving parents who cannot live together. For the purposes of today I will assume that each of the parties wants nothing but the best for this little girl.

19. The mother makes serious allegations in relation to the father's behaviour, and as I said, I confirm or refute those allegations. If she is correct, it must be that she exposed the child to that behaviour over a long time and one might ask why she did not do something sooner. 

20. There is reference to the parties attending on a Dr K over a significant period.  I do not know what was said at those sessions or the things that they tried to do to deal with or what issues that they raised with Dr K.  What I do know is that if there was controlling behaviour that impaired the mother's parenting, if there was any level of violence, verbal or physical, that was bad for the child. As a general proposition, the younger the child, the worse it is.  Young children do not have a way of processing violence or abuse. If they hear angry words, if they are in the presence of a parent who is distressed, that can changes the way they develop. That is what we are told.  And instead of their minds developing in a normal way, exploring the world, getting comfort, going out and exploring some more, getting comfort, their mind is diverted to "What do I do when angry words are spoken?  How do I protect myself?  How do I keep my head down?". Such exposure causes damage. 

21. Parents need to be very careful to make sure that if they are in a situation that could expose the child to that, they make sure the child is removed from that conflict or behaviour and then address their own needs in relation to those matters. 

22. In terms of the practical matters, the mother says she is not viable in Sydney without financial support and that support must be guaranteed. The mother says that she has that type of support in Queensland. Both parties want the child to have a close relationship with the other parent. Those relationships need to be serviced more frequently than every alternate weekend if they are going to be meaningful for a child who is 21 months of age.

23. I propose putting in place a conditional order triggered on a fund being established in a controlled moneys account. The parties may operate the account but only for the purposes I specify or that they agree upon. The main purpose will be to underwrite the mother’s accommodation for at least six months and the establishment and maintenance of her household.  I will leave the mother to nominate what she requires and then it will be for the father to establish the fund.

24. Minds might differ about that. There have been discussions about what is needed and what is not.  I cannot fix everything; I cannot make the necessary inquiries; I cannot find a house myself, so I need to prescribe something that I think has a reasonable chance of being workable. 

25. This whole exercise might be financially impracticable or unsustainable. The parties need to think about that, and that is one of the reasons why I will only put it in place for six months. I cannot promise the parties that this Court can provide a final outcome within six months but what we can do, when we get the ICL on board, is to confirm that Dr W is the proper person to do that work, commission that report and see if that helps the parties to plan life thereafter. There are only so many options. We could continue this sort of arrangement or the parties might work something else out. 

26. In my view alternate weekends is not in the best interests of this child. I know that is what the mother proposes. That might work in relation to a relationship between a child and grandparents in an intact family but here the relationship is with a parent and because of the conflict we are starting from a bad place, in any event. 

27. It is almost always the case that the Court is slow to start overnight time for very young children where there is a dispute about it. Here the parties each propose overnight time but I am going to impose day-only time for the time being. I appreciate that will be inconvenient both in Queensland and here but no harm will come to the child if the child doesn't stay overnight with the father. On the other hand there could be some harm if the child is consistently away from her bed.  The parties are always able to agree to something else. And I will express the orders in that way but I will not, on behalf of the community, impose overnight time away from the mother, on this little girl at this stage.

RECORDED:  NOT TRANSCRIBED

1. I will request the Legal Aid Commission of New South Wales make arrangements for that appointment and that the parties provide copies to the Commission of all relevant applications, affidavits and other documents on which they seek to rely. I hesitated about that because normally there would be a Queensland representative for a child living there but the child is not old enough to be consulted so let's keep it here. 

1. I note that the parties have considered the appointment of a single expert and I propose that that appointment only be made after the appointment of the independent child lawyer has taken effect. 

2. I give leave to the parties and to the independent child lawyer to restore the proceedings to the list on giving seven days notice to the Court and to the other party. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  17 June 2009