Heta and Gittara

[2012] FamCA 617

FAMILY COURT OF AUSTRALIA

HETA & GITTARA [2012] FamCA 617

FAMILY LAW – CHILDREN – Interim hearing – where there is currently a Coronial Inquest into the death of the child’s mother – where the child currently lives with her father and spends time with her maternal aunt for one night, each alternate weekend
– where the maternal aunt lives approximately on and a half hours away from the father
– where, at present, the maternal aunt is solely responsible for collecting and delivering the child – where the maternal aunt has applied for orders for increased time with the child – whether it would be in the child’s best interests to spend increased time with the maternal aunt – where orders made for increased time between the child and her maternal aunt.

Family Law Act 1975 (Cth)

Goode v Goode (2006) FLC93-286
Marvel & Marvel (No. 2) (2010) 240 FLR 367

APPLICANT: Ms Heta

RESPONDENT: Mr Gittara

INDEPENDENT CHILDREN’S LAWYER: Ms Boughton

FILE NUMBER: SYC 2463 of 2010

DATE DELIVERED: 2 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 19 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch

SOLICITOR FOR THE APPLICANT: Anthony Black Family Law Services

THE RESPONDENT: In person

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr McAuley

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Boughton Legal

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That until the child X born … September 2007 commences prep in 2013, she shall spend time with the maternal aunt as follows:

   (a)For weeks one and three in every six week cycle, from 11.00 am Friday until 3.00 pm Sunday, with week one commencing on Friday 10 August 2012; and

   (b)For week five in every six week cycle from 10.00 am Saturday until 10.00 am Wednesday.

2. That after the said child commences prep in 2013 she shall spend time with the maternal aunt as follows:

   (a)Each alternate weekend from 5.00 pm Friday until the commencement of school on Monday (or Tuesday if Monday is a school holiday) and provided that the applicant facilitates the drop-off at the child’s school; or otherwise at 5.00 pm on the day before school commences with the applicant to notify the father in respect of the return arrangements for the child at the commencement of each such period of time;

   (b)For one week in each school holiday period:

   (i)being the second week in the September/October and the Easter school holidays commencing at 5.00 pm on the middle Friday and concluding at 5.00 pm on the Friday before school recommences;

   (ii)being the first week in the December/January and the June/July school holidays commencing at 5.00 pm on the Friday when the school holidays commence and concluding at 5.00pm on the following Friday.

3. That Order 2 of the orders of 26 May 2011 be discharged and changeovers take place at the Suburb N train station, save as specifically provided in order 2(a) above.

IT IS FURTHER ORDERED THAT

1. That Order 3 of the Orders of 10 March 2011 be discharged.

2. The hearing before a Registrar listed for 6 September 2012 be vacated and the matter be relisted at 2.15pm on 8 November 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heta & Gittara has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC2463/2010

Ms Heta

Applicant Maternal Aunt

And

Mr Gittara

Respondent Father

REASONS FOR JUDGMENT

1. The trial of parenting proceedings between the parents of X born in September 2007 (“the child”) was due to take place over five days commencing 19 July 2012. Prior to the commencement of the trial, the parties advised the court that a coroner’s inquest in New South Wales had not taken place and that both parties contend that, potentially, any findings made in that coroner’s inquest may have some bearing on the parenting proceedings. As a result the trial was adjourned.

2. Pending the further hearing of the trial, the applicant maternal aunt seeks interim parenting orders which seek to alter parenting orders previously made in the Federal Magistrates Court. That application for interim orders was heard by me in the judicial duty list but, unfortunately, sudden illness prevented orders being made and reasons being delivered at that time. These reasons relate to that application.

Background

1. The background necessary for the purposes of determining the interim proceedings can be briefly stated.

2. Of most importance, the mother of the child died on in December 2009 at a time when the child was two years and three months old. The mother died as a result of a wound. In crude terms, she bled to death.

3. The reference to the coroner’s court was made, I gather, at least in part, as a result of contentions by the applicant aunt that the mother had bruising to her legs, thighs, arms, shoulder and back. The autopsy report attributed that to a fall. The death remains under investigation, and a hearing, or further hearing, will take place in August of this year.

4. The applicant, and the mother’s family more generally, regard her death as highly suspicious. As reported by Dr M, a single expert psychiatrist, instructed to prepare a report by the Independent Children's Lawyer, “it is the belief of [the maternal aunt] that … her relationship with [the father] was such that there were concerns for the safety of the mother and child. The father denies this allegation”.

5. Unsurprisingly in those circumstances, Dr M concludes:

   49.This is a matter characterised by extraordinary hostility between the parties and an absolute absence of trust. It is probable that all the mother’s family are experiencing unresolved grief which is expressed in terms of anger towards the father. The father’s position is defensive and dismissive. The legal authorities have yet to establish whether the mother committed suicide or was the victim of foul play, but it seems likely that the mother’s family will always be of the view that the father contributed significantly to the mother’s death and there appears to be no prospect of an amicable relationship between the two families.

6. Ultimately the orders sought by the father on a final basis contemplate the possibility of him returning to Southern Europe with the child. The maternal aunt seeks orders that the child live with her.

7. the child has remained in that father’s care since her mother’s death. Thus, she has been living with her father for about two and a half years. Allegations between the parties, in the context of distrust and suspicion to which I have previously referred, include that the father has not been willing to facilitate time – or at least adequate amounts of time – between the child and the maternal family.

8. The respective contentions by each of the parties have seen orders being made previously in the Federal Magistrates Court in July 2010, August 2010, September 2010, March 2011 and May 2011. Substantively, orders made in September 2010 provided for increasing amounts of time between the child and the applicant aunt increasing to alternate weekend time from 10.00am until 4.00pm Sunday. Changeovers were agreed to occur at the McDonalds Restaurant at Suburb B, in South East Queensland but those arrangements were subsequently changed by agreement to the Suburb B police station.

9. A later order made on 10 March 2011 by Coates FM, provides:

   3.That when the child is spending time with the applicant, that the child spend that time at the applicants residence only with allowance for activities such as shopping; attending the beach; attending the cinema or attending local parks in the [Sunshine Coast] area for recreational purposes.

The Applications

1. The maternal aunt seeks orders that the existing interim arrangements be varied so as to provide for a six week cycle during which for weeks one and three, C spend time with the maternal aunt from 11.00 am Friday until 3.00 pm Sunday and for week five in every six week cycle from 10.00 am Saturday until 10.00 am the following Saturday. Further, she seeks an order that paragraph three of the orders made by Federal Magistrate Coates which I have just quoted be discharged and that the changeover be moved from the Suburb B police station to the Shell service station at Suburb N being what she calculates to be the approximate half-way point between the respective residences of the parties.

2. By his response to that Application in a Case, the self-represented father seeks that it be dismissed.

The Child’s Best Interests

1. The principles applicable to an application of the current type are well traversed and I am familiar with them. (Part VII of the Family Law Act 1975 (Cth) (“the Act”) and, for example, Goode v Goode (2006) FLC93-286; Marvel & Marvel (No. 2) (2010) 240 FLR 367).

2. The decisions of the Full Court to which I have just made reference determined that the mandatory statutory Considerations Objects and Principles are applicable just as much to proceedings for interim parenting orders as they are otherwise, but importantly to the determination of this case, also recognize that interim hearings take place necessarily within a truncated environment where it is not possible for the court to examine and make findings about disputed issues of fact. Rather, the court must look to admitted and less contentious facts and those matters revealed by the evidence about which reasonable disagreement is not possible.

3. By reason of this matter’s history in the Federal Magistrates Court prior to it being transferred to this court, the court has the advantage in these interim proceedings of having before it the report from Dr M to which I have earlier made reference, together with a report of Mr W who prepared a comprehensive family report upon instructions from the Independent Children's Lawyer (“ICL”) on 13 January 2012.

4. In circumstances where the parties are very highly conflicted and where mutual mistrust governs their perceptions (and, thus, evidence) the reports from experts independent of the parties can be of considerable assistance on interim applications. Such is the case here. A number of passages of Mr W’s report are directly relevant to the issue which I must determine in this case.

5. I canvassed with each of the parties whether any time frame for the application of these orders governed, at least in part, by the conduct of the coronial inquest in New South Wales and the decision of that court, might be ascertained. Understandably enough no real precision could be given to any such time frame by either party. It seems tolerably clear, however, that this court is unlikely to hear the final trial in this matter until, at the earliest, February or March 2013.

6. Thus, an important contextual element to the issues in this case is that any interim orders are likely to remain pending for a period in excess of six months and, possibly, longer. Of particular importance in that respect is that the child is due to start prep at the beginning of the school year in 2013.

7. That fact leads to a submission by counsel for the applicant maternal aunt that the current proceedings provide a “window” within which a relationship of more benefit to the child with her maternal aunt (and the maternal family more broadly) can be established prior to the routine which the commencement of school necessarily brings about.

8. It is argued that the court should, as it were, take advantage of that “window” so as to establish greater time and a more involved relationship between the child and the maternal family because doing so is manifestly in the child’s best interests (irrespective, it might be said, of the ultimate orders that might be made after a trial).

9. Mr W’s assessment included home visits to each of the parties (the maternal family living in the Sunshine Coast area and the father living at Suburb H in South Eastern Queensland, involving a driving time of around one and a half hours).

10. It is convenient, I think to record Mr W’s conclusions:

    ·     [The child] is settled with her paternal family and is benefitting from regular contact with her maternal family.

    ·     The paternal family have developed an uncompromising and hostile attitude to the maternal family that is misguided and not in [the child’s] best interests.

    ·     The maternal family need to be more aware of the effect of their overarching concern regarding [the mother’s] death may have on their ability to enjoy [the child] “in the moment” during contact visits. Such visits need to be more relaxed.

    ·     Consideration should be given to extending contact visits to allow [the child] to have occasional longer, more relaxed, experiences with the maternal side of her family.

    ·     Prior to Trial, [the child’s] emotional regulation could be assessed by a child psychologist to establish whether the contact arrangements have been as beneficial as anticipated.

11. It is in my view plain from Dr M’s report that, at the least, each of the parties to these proceedings display psychological frailties. Dr M assesses the maternal aunt as not displaying a psychiatric disorder but opines that “she is suffering from unresolved grief reaction”. In respect of the father, the doctor found it difficult to judge whether he had a personality disorder but, again, assessed significant personality frailties.

12. Dr M plainly felt a keen sense of sadness at the plight of this young child:

    52.The unfortunate child who is the basis of the court proceedings is in a precarious situation in terms of her emotional health. I don’t believe that her bereavement is being appropriately handled. Whilst admittedly she would have no chance of comprehending the death of her mother, the father’s avoidance of providing her with any child appropriate rationalisation of the death is likely to provoke confusion, bewilderment and feelings of rejection by the mother. It is my view that the maternal family’s handling of that particular situation is more appropriate and I believe that the child should be undergoing therapy to focus on her bereavement. I believe that it is entirely appropriate that the maternal family have contact with the child and discuss the mother with the child.

    53.However, this is complicated by their belief that the father bears responsibility for the mother’s death. It would certainly be in the child’s interests for that to be clarified if possible.

13. In terms of concerns held by the doctor emanating from the dynamics in each of the respective families, the doctor said:

    54.… [The child’s] interests are best served by there being a quick resolution of the matter and her then undergoing therapy in the context of the supportive environment. At this stage that means that she should not be exposed to the suspicions that the maternal family has of the father and that she should not be exposed to any denigration of the mother.

14. By reason of his self-representation, I had some opportunity to observe the father and certainly significantly greater opportunity than I did of the maternal aunt. It is not for me to determine factual issues that may very well be live at the trial, particularly given the imbalance in observations to which I have just referred. However, many of the father’s responses were, when tested, redolent of at least some unwillingness to consider alternatives which had the result of increasing time between the child and the maternal family, or facilitating any such time more readily.

15. I consider Mr W’s opinion at paragraph 7.30 of his report to be important. Earlier, Mr W pointed out the relatively limited amounts of time that the child had spent with the maternal family since her father assumed care for her consequent upon the mother’s death. As a result of observation on the home visit with the paternal family he opined that the child “is happily settled there”.

16. Mr W went on to say that “contact with her maternal family had now developed into a pattern which seems beneficial … she has re-established relationships with her maternal family and her friendship with [K] a child of the maternal aunt about the same age as [the child] is clearly of significance”. Against that background, Mr W went on to say:

    7.30It is possible that [the child] will, as a consequence suffer the emotional harms envisaged [by an earlier report referring to absence of the child’s mother] or at least some of them. In those circumstances, time spent with her maternal relatives is an important balance and no harm can be occasioned her by significantly increasing the time [the child] is able to spend with them. Indeed, the one night a fortnight arrangement at present does not allow her to settle. Because of the time taken in transport between Brisbane and the Sunshine Coast things are rushed. Consequently, all the relatives try to spend as much time with her as they can. This may be understandable, but, as indicated earlier, the relatives need to allow her more space and not fuss over her so much.

    7.31It is suggested that occasional longer periods, say of a week, would likely result in a more relaxed “holiday” environment where deeper, more meaningful, relationships can develop. [The child’s] emotional regulation difficulties (evidenced by concerns expressed by both families at the beginning and end of contact visits), could also be better assessed, preferably by a child psychologist before a final determination of the matter is made.

17. I am troubled, as pointed out in helpful written submissions prepared on behalf of the maternal aunt, that the father, both in this affidavit (eg. at [41]) and, indeed, in questions posed of him by me, does not appear to see that there is any benefit to the child in spending more time with the maternal family. He very much sees any such increased time as providing the potential to upset what he regards as a stable and beneficial environment for her (“it [more time] will uproot everything”).

18. The father referred in particular to the fact that, in light of the child starting prep next year she will be “going through a lot of changes” and the promotion of stability, he contends, is all the more important as a result.

19. The father acknowledges that there are significant difficulties between the respective family groupings and he (like the maternal side) sees very little optimism for any change in the short-term or long-term future. He says, understandably enough, that this presents the child with significant stress; when I asked him whether he could see any benefits for the child in spending a week with the maternal family as proposed, he said “this is not a stress test [for the child]”.

20. I am satisfied that, on an interim basis, the current arrangements provide too little time for the child to enjoy time with her maternal family.

21. I find the comments made by Mr W (and to a lesser extent Dr M) about the need for the child to settle in an environment and for there to be less pressure on her by reason of the short amount of time available to many family members to be persuasive in that respect. It is also important to observe that the existing time is bracketed by the maternal family undertaking three hours of travel at the commencement and conclusion of each such period of time.

22. There can, I think, be little doubt – at least on an interim basis – that the child will benefit from a meaningful relationship with each side of her family, not least in the tragic circumstances that have already confronted her. Indeed, at least ostensibly, the father appears to acknowledge this.

23. In terms of the Act’s other Primary Consideration, I do not propose to descend into detail. Neither party contends – for the purposes of this interim hearing – that there is any immediate harm from which the child needs to be protected. In saying that I do not ignore – nor indeed diminish – the potential importance of the issue of whether attitudes in one or both families might, in the longer term, be harmful to the child, an issue which one suspects might be live at the trial.

1. Similar considerations apply to a detailed consideration of the nature of the child’s relationship with each of the, as it were, competing families. Again, the issue may well be live at the trial but, for present purposes, the nature of the relationship between the child and her father on the one hand and the maternal family on the other, points to the relationship with the maternal family being fostered and developed whilst, at the same time, seeking to preserve as much stability as possible for her in the lead up to commencing school.

2. The attitudes and responsibilities towards parenthood and also willingness and capacity to provide time will also likely be an issue at the trial. I have already commented above (albeit in a very limited sense) about this issue.

3. The father says he does not own a motor vehicle and, as a result, is unable to actively participate in the facilitation of time. On the other hand, the current arrangements provide for the maternal family to drive three hours at the commencement and conclusion of fairly limited periods of time with the child.

4. It is troubling that at paragraph 35 of his affidavit in these proceedings the father deposes, “it is the maternal aunt’s application in this matter and if she wishes to see [the child], then it is appropriate that she meet the cost of such transportation”. Further, the evidence reveals that the father has had, at times, access to a motor vehicle and on at least one occasion in March 2012 has facilitated the changeover at a service station north of Brisbane. I am very concerned that what are asserted to be effectively insuperable practical arrangements with respect to the facilitation of time might in fact be more redolent of unwillingness but, of course, only findings at a trial will ultimately resolve that issue.

5. In my view, the child’s best interests are best met by increasing the time that she has available to her with her maternal family.

6. The reasons for that are, I think, clear from the matters to which I have already referred. In particular, I agree with the father that there is a need for stability in light of the tragic beginning to the child’s life and the fact that she currently has two groups of people who each plainly dearly love her, but who regard the other with suspicion and mistrust.

7. However, a need for stability does not necessarily mean that leaving things the way they are is in the child’s best interests. Sadly, all children who are the subject of parental separations (whether in the tragic circumstances of this case or otherwise) need to adjust to the fact that arrangements as between their parents (or others) will often mean greater movement and dislocation than would be the case in an intact family. Nevertheless, even in intact families, dislocation and a measure of instability arise from the necessities of life. One of the necessities for the child is, in my view, that she be permitted to develop a meaningful relationship with her maternal family because, in my view, all of the evidence suggests that she will benefit significantly from that.

8. The nature and extent of that relationship and whether it ought be as currently contended by the maternal family or whether it ought be as currently contended by the father is ultimately a matter to be decided at trial. In the intervening period, however, I consider that her best interests require her to spend more time with her maternal family than what the current orders provide. That is particularly so because the trial is delayed and school will start for her next year.

9. I am not, however, persuaded that in the current circumstances, the period of one week for which the maternal family contends and which Mr W recommends is in the child’s best interests.

10. One cannot ignore the fragility of the child’s circumstances – a conclusion arrived at wholly independent of what one side or the other might contend as the cause for it, or who is “to blame” for it. That fragility, and the need to preserve stability, persuades me that, in terms of making orders, the court should “hasten slowly” as that course is in the child’s best interests.

11. Accordingly, balancing those considerations, I propose to order that in a six-week cycle, the child spend time with the applicant maternal aunt in weeks one and three from 11.00 am Friday to 3.00 pm Sunday and in week five from 10.00am Saturday to 10.00am Wednesday.

12. I propose that those arrangements for time should continue until the commencement of the school year in 2013. At that time, orders will be made facilitating time between the child and the maternal aunt from after school Friday until the commencement of school Monday each alternate weekend and for a period of one week in each of the school holiday periods pending the trial. That time must take account of the need to have C at school on a Monday morning and the practicalities of a changeover at the Suburb N train station are likely to make that very difficult if C is to be at school on time. Thus, at the election and notice by the applicant, the applicant can drop C at her school at the commencement of school on Monday (or Tuesday if Monday is a school holiday) or effect a changeover in the usual way at the Suburb N train station at 5.00 pm on the day before school commences.

Restriction on Locality

1. I can see no good reason why paragraph 3 of the orders made by FM Coates on 10 March 2011 should remain in the child’s best interests. Indeed, in discussion with the father, he effectively conceded as much.

Changeovers

1. The issue of changeovers has already been referred to in part. The father says that he is simply unable to facilitate the changeovers in the manner proposed by the maternal family because he does not have a vehicle. I accept that this presents some difficulties for him but I do not consider them entirely insufferable.

2. Reference to the Translink website (Division 12A of the Act; s 144 Evidence Act) reveals at least one alternative means of facilitating changeovers without a vehicle. The father argues that a police station offers a measure of protection against conflict on changeover. That may be so, but I do not like the association between police stations and changeovers. I will order changeovers at a half-way point (Suburb N) but do so at the Suburb N train station to accommodate the possible use of public transport.

3. Contrary to that which the father would appear to depose in his affidavit, arrangements for changeover are not merely an issue as between the capacity or willingness of the adults involved. Rather, sharing responsibilities is a very important part of showing to a child by overt actions that the time to be spent by the child with the other part of the family is something which is supported by the father. The message conveyed to a child in that respect is, in my view, important in supporting the child emotionally. Whilst it might be thought that changeover arrangements are about practical matters entirely, that is in my view, not the case. Best interests considerations attend that issue as well in the manner to which I have just referred.

4. In the circumstances of this case, again attempting to balance the practical difficulties which the father asserts together with the other matters which in my view directly relate to the best interests of this child, it seems to me that the father should bear at least some of the responsibility for changeovers.

5. Balancing those matters as best I can, it seems to me appropriate that the families should share changeovers for time, with the father accompanying the child to and from the Suburb N train station and the applicant travelling to this approximate half way point.

Delay

1. I apologise to the parties for my inability to deliver judgment when indicated due to sudden illness.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 2 August 2012.

Associate: 

Date:  2 August 2012