Gitarra & Heta (No. 2)

[2009] FamCA 655

FAMILY COURT OF AUSTRALIA

GITARRA & HETA (NO. 2)	[2009] FamCA 655
FAMILY LAW – CHILDREN – Application for review – With whom a child lives – Mother relocated to Queensland from NSW – Financial difficulties in Sydney – Significance of joint responsibility for decisions concerning where the child lives – Application for review dismissed – Expedition recommended

C v S [1998] FamCA 66
APPLICANT:	Mr Gitarra

RESPONDENT: Ms Heta

INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

FILE NUMBER: SYC 2265 of 2009

DATE DELIVERED: 13 July 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Barry J

HEARING DATE: 13 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Frakes, Solicitor appearing for the Applicant Father

COUNSEL FOR THE RESPONDENT: Mr Dura of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Mr Sperling, Solicitor appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The Mother’s Application in Form 2 filed 4 June 2009 be dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Mother ensure the child, … born … September 2007, is residing in Sydney by no later than 16 August 2009.

1. IT IS DIRECTED AND RECOMMENDED that the proceedings be expedited and set down for trial at the Sydney Registry of the Family Court in September 2009.

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: SYC2265 of 2009

MR GITARRA

Applicant

And

MS HETA

Respondent

REASONS FOR JUDGMENT

1. The child the subject of these proceedings is a daughter born in September 2007.  The mother wants to be able to live with the child on the glorious sunshine coast of Queensland.  The father says the child should live in Sydney with the mother, but be able to have regular time with both parents.  The parties were initially residing in Queensland when they were in a relationship for a period of time.

2. The father received a promotion in his employment which is, I understand it, in the IT industry and in February 2007 they effectively relocated from Queensland to Sydney.  The child was born in Sydney in September of that year.  In March of this year the applicant mother left the relationship, and as parties often do, immediately sought the sanctuary of home, which in this case was at her mother’s residence on the sunshine coast.

3. The matter came before Judicial Registrar Loughnan, and on 6 May this year for reasons he gave at the time, he issued an order that there be a fund of $17,500 established in a controlled money account to provide for the relocation of the mother back from the sunshine coast to the Sydney area.  All of these orders were on a temporary basis, and the child was to live with the mother, but the child was to spend time with the father subject to his availability, at least once a week.  The orders required that the paternal grandmother or some other person agreed between the parties, would also be present.

4. His Honour directed the appointment of an Independent Children’s Lawyer.  Various other specific orders were made about communication by Skype and arrangements about the parties keeping each other informed and things of that nature.  The reasons delivered by the Judicial Registrar at the time were admirably succinct.  I can’t say the same about the material that’s been filed in this matter.  Under section 26C of the legislation this hearing is a hearing afresh, there is no need to establish fault in the way the matter has been conducted by the Judicial Registrar.  It’s as if we started it again.

5. The orders sought by the mother are set out in a Minute of Orders which was handed up at the commencement of today’s hearing.  She seeks that she be permitted to reside in Queensland, and she proposes that the father fly from Sydney to Brisbane each weekend, and she will deliver the child on Saturday morning and collect the child at 4.30 pm on Sunday.  She seeks that for one weekend a month that the father’s time with the child be Thursday morning until Friday afternoon.

6. As I understand it, the father works from Monday to Friday and this would necessitate him working an eight day fortnight instead of a 10 day working fortnight.  There has been no canvassing of the significant issue whether the father has any flexibility with his time, but for the present purposes I proceed on the basis there is no evidence that he can do that.  The reason for the proposal is the mother wants to have some weekend time herself.  She further proposes that whilst the father continues to reside in Sydney she’ll reside in the sunshine coast, and there be communication by Skype between 5.45 pm and

   
   6.15 pm

   two nights a week.

7. She proposes a communication book.  Given the level of communication and the nature of it that I have witnessed in the affidavit material, I would not have any great confidence that a communication book would improve the situation between the parties at all.  At paragraph 11 in a handwritten note she seeks that the father’s time with the child pursuant to the orders be supervised.  There were no submissions addressed to me on that aspect by the legal representative for the mother.  The father’s mother, as I understand the evidence, has relocated from Brisbane, she’s residing in Sydney, she’s available to assist the father in the care of the child.

8. The mother’s difficulties have been set out both in her material and in the submissions received today.  Her primary difficulty is a financial one.  In setting out various schedules she expresses concern a good deal of the money will be expended in the relocation and on her calculations she will be left only enough money to cover nine weeks of rent.  She’s concerned about high levels of rental in Sydney, and the fact that she is currently only on $400 a week from Centrelink benefits.  In addition, the father pays child support of about $135 a week I believe.

9. The mother is concerned about being isolated from family and friends in the Sydney environment.  She says she has extended family in south east Queensland.  I note the mother has lived in Sydney for two years, and has a friend from those days caring for the child on today’s date.  She argues however that she’s dependent in her current state for the support of her mother and extended family.  Exhibit 3 consists of clinical notes of Dr K, a clinical psychologist, setting out what the mother told Dr K at a session she had with him.  Objection was taken to this document being admissible in this form.  I note paragraph 4 of the father’s affidavit of 17 April, where he says:

   “For the past six months the respondent and I have been seeing a psychologist about marital problems”.

   For present purposes I will not rely on Exhibit 3 until the full extent of the nature of the counselling can be presented to the Court.  But it would seem to me that it may well fall in the realm of confidential counselling.

10. There is however, a document which I will be referring to and that’s the letter from Professor K, no objection was taken to it, and it’s a letter of 17 April to which I shall be averting shortly.  It’s a given that there are no assets available to be attached to assist the mother, other than the $17,500 put forward. The father has recently borrowed $60,000 from his mother, I assume to cover legal costs, and the monies paid pursuant to Judicial Registrar Loughnan’s orders, namely the $17,500.

11. The father seeks orders in accordance with an amended response to an application in a case review filed on 9 July.  He seeks that the application for review be dismissed, but in addition he seeks variations to paragraphs 3 and 4 of Judicial Registrar Loughnan’s orders, namely that when the mother returns to Sydney she be restrained from residing more than 20 kilometres away from his residence.  He seeks an order in the alternative that if the mother continues to reside in Queensland then the child live with the father in Sydney.  That wasn’t canvassed, I gather it’s not an option whatever the outcome.  The father seeks other orders that I really was not addressed on.

12. The father has an income of about $113,000 a year.  He says by the time he’s paid tax and rental of $500 a week, and child support and other commitments, he has not a great deal of money available.  I note there are many disputed areas of fact.  I accept that interim decisions can be significant, but there seems to be an awful lot of territory that’s been canvassed that I would have thought on an interim basis was of dubious relevance.

13. I turn to consider the report from Professor K, addressed to the father dated 17 April.  He does not in that report discuss the contents of the counselling sessions, but simply makes observations which I can only infer he was in an appropriate position to be able to make.  He notes that he initially saw the parties on 16 August 2008

    “The child appeared well adjusted to you both, and behaviour as indicated that you both loved your daughter,”

    He says:

    “I’m aware of the issues and problems you both faced.  I anticipated that separation was one alternative.  I recognised your sincere attempt to prevent this happening, and your contribution to resolve your serious problems”.

14. He adds:

    “On my return from overseas I was informed that during my absence [the mother] had left the family residence and had taken your daughter [the child] with her.  Since that time I’m aware that you’ve had no contact with your daughter”.

    He concludes:

    “For the wellbeing and ongoing sound development of [the child], there is a need for her to speak with and see her father, regular contacts will reassure [the child] that her father still exists and that he has a caring and loving concern for her.  This is very important for a loving relationship to continue, with minimal separation between father and daughter.  Arrangement for some regular contact are essential”.

15. The parties are accepting of that.  I do not intend to go through all of the affidavits in detail, save to note that the degree of specificity engaged in the father’s material is extreme, probably far more than a Judicial Officer needs to know for the purposes of a hearing such as this.  If the father’s version of events be correct, I do detect something of an obstructive and uncooperative attitude on the part of the mother.  Times such as where the arrangement was for the child to be collected at 4, the mother saying that it was to be 3 o’clock.  That’s just one small example, there are numerous instances of that throughout the father’s material.

16. The legislation over recent years has been strengthened to ensure that both parties had maximum input into a child’s life, after separation.  I referred the parties to a decision in 1998, C v S [1998] FamCA 66, it was a decision of the Full Court of Ellis and Lindenmeyer and Orlich JJ. I was familiar with it as it was an appeal from a decision that I’d made. The facts here are fairly much similar to that, one significant difference is the father in that case was indigent and would not have been able to afford to travel between Brisbane and Deniliquin, and that was a significant fact that if the mother stayed on in Deniliquin nobody could afford the travel.

17. However, I do take into account the legislative changes of recent times, and having regard to the presumptions that are in force as to joint responsibility, and joint responsibility involves where the child will live.  The mother has unilaterally in March this year, taken off and she could have gone to any part of Australia, wherever her mother lived at the time and she now asks the Court to simply sanction that.  There would be chaos if courts allowed parties to do that and then rubber stamp what they have done. 

18. I am sympathetic to the situation the parties find themselves in.  I will make a recommendation for expedition.  I don’t know what that will mean in the Sydney list.  I hope at the very least it means the parties get heard earlier than other cases, but to justify an expedition order as a reason why the mother should not have to come back to Sydney flies in the face of the case law on the subject and the legislative intent.  The issue of stability is important.  The proper way to have done things was for the mother to have applied to the Court at the time of separation to seek permission to live with her mother in the sunshine coast.

19. I’ve referred to the reasoning of Judicial Registrar Loughnan.  I don’t need to canvass that, all I can say is I’ve read it and I couldn’t put it better myself, so I don’t propose to read it into the record a second time.  The application for review will be dismissed.  What do you say about these other orders being sought by your client, Mr Dura?

    RECORDED  :  NOT TRANSCRIBED

20. The mother to ensure that the child is residing on a permanent basis in Sydney by no later than 16 August 2009.  I’m minded to do away with the supervision.  You didn’t address a word about it to me on the review.

    RECORDED  :  NOT TRANSCRIBED

21. The orders will issue in accordance with the reasons I’ve given today. 

    RECORDED  :  NOT TRANSCRIBED

22. I’ll make a recommendation that this matter be expedited and be listed as a reserve if possible, for September.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  13 July 2009