Heta and Gitarra
[2010] FMCAfam 1145
•9 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HETA & GITARRA | [2010] FMCAfam 1145 |
| FAMILY LAW – Parenting – interim – maternal aunt applicant – child’s mother deceased – transfer of proceedings to Brisbane. |
| Family Law Act 1975, ss.60CA, 60CC |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS HETA |
| Respondent: | MR GITARRA |
| File Number: | SYC 2463 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 9 September 2010 |
| Date of Last Submission: | 9 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Antwan Lawyers |
| Counsel for the Independent Children’s Lawyer: | None |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid New South Wales |
ORDERS
These proceedings be transferred to the BRISBANE Registry of the Federal Magistrates Court of Australia.
All extant applications be adjourned to the Federal Magistrates Court in Brisbane on 25 October 2010 at 9:30am for mention (“the mention hearing”) as a transfer matter in the duty list of that Court.
The appointment of the Independent Children’s Lawyer as funded by the Legal Aid Commission of New South Wales be discharged.
The child, [X] born [in] 2007 (“the child”) be independently represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Brisbane.
Paragraphs four (4), five (5) and six (6) of the Orders made by this Court on 11 June 2010 be discharged.
The Orders made by this Court on 27 August 2010 remain in full force and effect.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The child live with the Respondent in Brisbane.
The child spend time with the Applicant as follows:
(a)On four (4) occasions commencing on the first Saturday after the making of these Orders from 10:00am until 12:00 noon each Saturday;
(b)Thereafter on a further four (4) occasions from 10:00am until 4:00pm each Saturday;
(c)Thereafter on a further four (4) occasions, being each alternate weekend from 10:00am until 4:00pm on Saturday and from 10:00am until 4:00pm on Sunday; and
(d)At any other times as agreed between the parties.
Changeover will occur as agreed between the parties or failing agreement at McDonalds Family Restaurant, [B] (“McDonalds”) with the Applicant or her nominee, being the maternal aunt, the maternal uncle, the maternal grandmother, or the maternal grandfather, collecting the child from McDonalds from the Applicant or his nominee, being the paternal aunt or the paternal grandmother, at the commencement of the Applicant’s time with the child and returning the child to McDonalds at the conclusion of the Applicant’s time.
That each party be and hereby restrained from the following:
(a)Denigrating the other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so; and
(b)Discussing the circumstances of the mother’s death, or any investigation in relation to her death, with or in the presence of the child, or allowing any other person to do so.
That each party inform the other of their current residential address and contact telephone number(s) and keep the other party informed of any change in these details.
AND THE COURT NOTES THAT:
(A)The Applicant acknowledges the Respondents concerns about the child being exposed to grief in relation to her Mother’s death and undertakes to do all acts and things necessary to ensure that the time the child spends with the Applicant, and other members of the maternal family, is a positive and happy experience for the child.
(B)The Respondent has filed an application in a case on 26 August 2010 which seeks a relocation order for the child to Rome, ITALY. If this application is pressed by the Respondent at the mention hearing then he may seek to have these proceedings transferred to the Family Court of Australia.
(C)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Heta & Gitarra is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2463 of 2010
| MS HETA |
Applicant
and
| MR GITARRA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MS HETA (“the maternal aunt”) against MR GITARRA (“the father”) seeking various parenting orders in relation to the child, [X] (“[X]”). More specifically, the maternal aunt is seeking final orders to the following effect, that:
·the parties have equal shared parental responsibility for [X];
·[X] live with the maternal aunt; and
·[X] spends time with the father.
The maternal aunt’s application is supported by her various affidavits filed in these proceedings, in particular, her own affidavit, sworn 27 April 2010 and filed 29 April 2010; and her affidavit sworn and filed in Court today. She is represented by Ms Smyth, today.
The father, in his response, albeit a response to an application in a case, in my reading of the document, filed on 2 July 2010, opposes the orders sought by the maternal aunt and is seeking different parenting orders in relation to [X], namely that:
·he have sole parental responsibility for [X];
·she live with him and spend time with the maternal aunt, as agreed.
The father has also filed an application in a case, superseded by his amended application in a case, filed on 26 August 2010, where he seeks orders that would enable him, in addition to the orders that he set out in his response, to relocate with [X], presumably to Rome, Italy. But until that occurs, [X] continue to spend two hours a week with the maternal aunt, at the [L] [playcentre] in [S], Brisbane.
The father also relies on the various affidavits he has filed in these proceedings. His own affidavits, together with the affidavit of his sister, the paternal aunt and his mother, the paternal grandmother. Today, he has also filed an affidavit of Professor K, a clinical neuropsychologist and psychologist, which attaches a report dated 7 September 2010 summarising Dr K’s notes in respect of his dealings with [X]’s late mother, the father and [X] herself.
By my order on 22 July 2010, an Independent Children’s Lawyer (“ICL”) was appointed and Ms Shea appears in that capacity today.
Background
These proceedings were commenced by the maternal aunt in April 2010. They initially came before me on 9 June 2010. On that occasion, I made orders for substituted service on the father. When the matter returned two days later, on 11 June 2010, the father appeared self-represented and I made orders to enable the maternal aunt to spend two hours each Thursday with [X] at [L], [C].
I also made an order for the parties to attend a child dispute conference, which they did, on 5 July 2010. Ms C was the family consultant that the parties attended with and she provided the Court with a comprehensive memorandum in respect of their attendance. Unfortunately, the parties were unable to resolve their dispute at that conference.
According to Ms C’s memorandum, the issues remaining in dispute are the issues of parental responsibility, who [X] lives with, and who she spends time with. As to the issues impeding resolution, Ms C makes the following comments:
“This is a complex matter. [X]’s mother, Ms H, died in December 2009. She committed suicide. At the time, the parents were in the Family Court – file number SYC 2265/2009 – as a result of not being able to agree on parenting arrangements for [X]. The child and parents issues assessment was completed in August 2009 by Ms R. The current application is by the maternal aunt, Ms Heta. She resides in Queensland, as do many members of the maternal extended family. When the parents separated in March 2009, the mother went to live with her extended family for four months, until the Court ordered that she and the child return to Sydney. The aunt’s perspective is that since the mother died, the father has tried to shut them out of [X]’s life. From December 2009 to February 2009, the family were travelling to Sydney, to see [X], on an irregular and limited basis. The aunt said it was very difficult to get in touch with the father during this time. There was an incident, in February 2009, when the father became upset that a number of the maternal family members were present at changeover and then one of the family attempted to give [X] a picture of the mother. This visit ended abruptly, as a result of this conflict, and the maternal family had no contact with [X] until June 2010, when interim orders were made.”
I assume Ms C is referring to December 2009 until February 2010, and there was an incident in 2010. She goes on to say:
“The father’s perspective is that the aunt and the rest of the extended maternal family, “don’t want to respect my wishes as a parent.” In essence, this means that the father does not want [X] to be exposed to memories of her mother until she is of an age where she can understand what death means. And he believes that the maternal family would be constantly reminding [X] of her mother, which is not healthy for her and would put her in a stupor and depression. The father has taken advice on this from Dr K, a psychiatrist, who the father sees regularly.”
Clearly, Dr K is a neuropsychologist. Ms C goes on to say:
“The father said that it would be unreasonable and disruptive for [X] to leave him and travel to Queensland on a regular basis. The father is proposing fortnightly, supervised contact, for two hours. He believes that the current interim orders are working well. The aunt’s perspective is that [X] needs to be a part of a large and close extended family that she has formed attachments with, as a result of living with them for four months, in 2009. And that she needs to have appropriate exposure, within this family, to memories of her mother. The aunt expressed concerns that [X] is very isolated, being cared for the father and his mother, with only limited interaction with other children.”
As to specific recommendations, Ms C recommends that, regrettably, further dispute resolution is unlikely to assist the parties. She has recommended the Court consider ordering a family report and that an independent children’s lawyer should be appointed. As stated, when the matter returned before me on 22 July 2010, I made orders seeking the appointment of an ICL.
The maternal aunt filed an application in a case on 13 August 2010 that came before Sexton FM, on 27 August 2010. That application sought various restraints, including an airport watch order. Her Honour made orders to that effect, that day, with the consent of the parties, together with other orders. The matter returned before me today for a reconsideration of the spend-time arrangements.
As the father and [X] have now relocated to Brisbane, and given the maternal aunt and her family live in the greater Brisbane area, it is obvious to the parties, and indeed to the Court, that the proceedings will inevitably be transferred to Queensland.
Issues
The issues today focus on two aspects:
a)whether the proceedings should be transferred to the Federal Magistrates Court in Brisbane or transferred to the Family Court of Australia; and
b)whether the current spend-time arrangements, with respect of [X] spending time with the maternal aunt, should be extended.
The maternal aunt provided the Court with a comprehensive minute, seeking increased time to be spent.
By way of summary, the maternal aunt is suggesting that for the next four weeks, she spend Saturdays between 10:00am and 4:00pm and Sundays between 10:00am and 4:00pm. Thereafter, for a further period of four weeks, she proposes that [X] spend from 10:00am Saturday to 4:00pm Sunday each alternate weekend.
Thereafter, it would be every alternate weekend from 4:00pm Friday until 7:00pm Sunday. She is also seeking that [X] spend a block period from 19 November 2010 to 23 November 2010 with the maternal aunt. This is due to reasons related to the extended family visiting during that period. She is also seeking other periods of time that would go well and truly into 2011 and beyond.
The maternal aunt is proposing the changeovers occur at a family restaurant known as the [omitted], which she asserts is some
45 minutes or so away from the father by car and a not dissimilar distance away from the maternal aunt.
The father opposes this and merely seeks the continuation of the current arrangements that occur on a Thursday between 10:00am and 12noon, albeit in lieu of the [C] [L], at the [S] [L], Brisbane.
The ICL also provided the Court with a minute of proposed orders, which proposes a more modest increase in the amount of time spent by [X] with the maternal aunt. The proposal, by way of summary, would have [X] spending time with the maternal aunt:
·for the next four weeks on Saturdays from 10:00am until 12noon; then
·for a further period of four weeks from 10:00am until 4:00pm each Saturday; then
·for a further period of eight weeks each alternate weekend from 10:00am to 4:00pm Saturday and from 10:00am until 4:00pm Sunday; then
·once that period has expired each alternate weekend from 10:00am Saturday until 4:00pm Sunday.
The ICL also proposes orders for a non-denigration and for the parties to keep each other informed as to current residential addresses, and the like. I can indicate that both the solicitors for the respective parties have agreed such an order should be made today.
The maternal aunt proposes that the proceedings remain in Sydney but understands the likelihood that the Court may transfer these proceedings to Queensland. The ICL supports the proceedings remaining in the Federal Magistrates Court, until the father’s proposed relocation is better particularised. And the father seeks the transfer of these proceedings to the Family Court of Australia, given that he proposes an international relocation.
Parties’ submissions
The parties’ legal representatives and the ICL each gave submissions on behalf of their client’s respective proposals. Ms Smyth, for the maternal aunt, specifically relied on the affidavit of the maternal grandmother to indicate that [X] lived with the maternal family for the period of March 2009 through August 2009 and also relied on the maternal aunt’s recent affidavit that the time spent under the current orders has progressed well.
Ms Smyth also referred to the maternal aunt’s earlier affidavit filed in April 2010 in relation to the relationship between [X] and the maternal aunt’s child, [Y], who are of similar ages. Ms Smyth submitted that the time was now right to extend the period of time spent between [X] and the maternal aunt and the maternal family. She submitted that this would advance [X]’s best interests.
The ICL acknowledged that there is evidence before the Court that the current spend-time arrangements have progressed well. Moreover, there is also evidence that despite the difficult circumstances of this particular case, [X] appears to be progressing and developing well and she referred the Court to Professor K’s affidavit.
The ICL’s submissions were that it was clear that [X] had a good and close relationship with the father and the paternal side of the family. Indeed, she described [X] as, in her words, “confident”. She submitted that there was clearly a capacity to increase the time to be spent between [X] and the maternal side of her family. But the ICL suggested that caution was needed in respect of [X] spending more than one night away from the father until a full family report can be obtained.
The father’s proposed relocation added an extra problem.
Ms Atalia, for the father, also submitted that caution was needed and echoed the ICL and Ms Smyth’s comments that [X] had done remarkably well, despite the sad circumstances over the last year. She asked the Court to consider that, for whatever reason, the relationship between the two families was not good and that, if the father succeeds in his international relocation, the spend-time between [X] and the maternal aunt would not be regular.
Ms Atalia submitted that the current spend-time arrangements should remain as they are as they had served [X] well. She also submitted that as the father was without regular car transportation in Brisbane, the changeover location proposed by the maternal aunt would create logistical problems for him. Conversely, [L], [S] was quite close to the father’s sister’s home in [H], which is a Brisbane suburb.
In her reply, Ms Smyth said that the distances between the residences only reinforced the need for greater time to be spent between [X] and the maternal family.
The Law
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 guides the Court’s approach in making interim decisions, and interim orders, in relation to parenting disputes. In paragraph 81 of that decision, the Full Court noted:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence, and disputes between parents as to what constitutes the best interests of a child.”
Clearly, this is such a case. More specifically, it raises the reality that the Court is not in a position to determine issues of credit today, as the evidence being presented by the parties and the ICL to the Court is not being tested by cross-examination. That having been said, the Full Court went on to say in the Goode decision that the legislative pathway must be followed.
In other words, the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting amendments must be followed at an interim hearing.
These are sad circumstances. For whatever reason, there is considerable animosity between the parties and no doubt the history of the matter will be the subject of evidence and cross-evidence, should a final hearing be needed.
There is no issue of parental responsibility to be determined today. Presently, the father has parental responsibility, apart from the issue, as I understand it, of giving authority for a passport, which he shares with the maternal aunt. At this point, let me note s.60CA of the Act provides:
“In deciding whether to make a particular parenting order, in relation to a child, the Court must regard the best interests of the child, as the paramount consideration.”
To determine [X]’s best interests, the Court is required to consider the primary considerations set out in s.60CC (2) and the additional considerations in s.60CC(3), where relevant.
Primary considerations: s.60CC(2)
Under s.60CC(2)(a) the Court is required to consider the benefit of a child having a meaningful relationship with both of his or her parents. This consideration does not apply in the current circumstances because the maternal aunt is not a parent. Her relationship is nonetheless relevant under s.60CC(3), which will be discussed shortly.
The Court is also required to consider s.60CC (2)(b):
“The need to protect a child from physical or psychological harm and being subjected to abuse, neglect or family violence.”
There is no doubt that it would be in [X]’s best interests to develop a meaningful relationship with her maternal family, as well as her paternal family. That needs to be balanced in protecting her from any psychological harm and the like when families are in considerable disagreement.
Additional considerations: s.60CC(3)
Clearly, under s.60CC(3) the nature of [X]’s relationship with both the maternal and paternal family is relevant, as is the father’s proposed relocation to Italy.
Conclusion
Having considered the submissions, in light of the evidence, and the structured discretion within the Act, I am satisfied, firstly, that the proceedings should be transferred to the Federal Magistrates Court in Brisbane. There will be a notation today that the Court may wish to consider whether the matter remain in that Court or be transferred to the Family Court, given the proposed relocation request by the father.
Secondly, I am satisfied that there needs to be a gradual increase in the time spent between [X] and the maternal aunt for the reasons expressed by the ICL. Nevertheless, I have decided that a more cautious and gradual increase, that is the approach proposed by the ICL, would indeed be in [X]’s best interests at this point in time.
I am also satisfied that there may be issues about the changeover location that need to be considered. I propose that, if possible, the parties should agree on a location close to the father’s current residence, given that he appears to have transport issues. I have ascertained, for example, that within relative proximity to the father’s location, are several McDonald’s restaurants, particularly at [B], which is a suburb of Brisbane. I will stand the matter down shortly for the parties to have those negotiations and failing agreement, I will entertain further submissions and determine that issue.
I will otherwise adjourn the matter to the duty list in the Brisbane Federal Magistrates Court on 25 October 2010 at 9:30am. As I have indicated, there will be a notation today along the lines that the father has indicated that he may seek that the matter be transferred to the Family Court of Australia.
There will be orders and notations to reflect the decision of the Court.
I reserve the right to settle the reasons for this interim decision.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 19 October 2010
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