Maletta and Bassi
[2010] FMCAfam 1036
•20 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MALETTA & BASSI | [2010] FMCAfam 1036 |
| FAMILY LAW – Interim – application by father to retain child in Sydney – mother and child’s siblings living in northern New South Wales – views of the child – transfer of proceedings to Brisbane Registry. |
| Family Law Act 1975 ss.60CA, 60CC |
| Goode v Goode (2006) FLC 93-286 |
| Applicant: | MR MALETTA |
| Respondent: | MS BASSI |
| File Number: | SYC 4453 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 20 July 2010 |
| Date of Last Submission: | 20 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | MDR Lawyers |
ORDERS
All extant application are transferred to the Brisbane Registry of the Federal Magistrates Court and are listed before Federal Magistrate Coates on 16 August 2010 at 9:30am.
The Applicant return [X] born [in] 1998 (“the child”) to the Respondent’s care by 5:00pm on 24 July 2010.
The Child Dispute Conference date listed on 2 August 2010 at 2:00pm be vacated.
The order made in paragraph 1 herein be stayed until 27 July 2010.
If the Applicant fails to comply with paragraph 2 herein the mother is at liberty to apply to have the matter relisted before me in the Sydney Registry on or before 27 July 2010.
The Respondent make, file and serve a Response and Affidavit in Support by no later than 4:00pm on 27 July 2010.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The orders made on 18 June 1999 be suspended.
The parties have equal shared parental responsibility for the child.
The child live with the mother.
The child spend time with the father:
(a)During all school holiday periods; and
(b)At other times as agreed between the parties.
The child communicate with the father by way of telephone at times as agreed between the parties or, failing agreement, between the times of 6:00pm and 9:00pm for a period of at least 30 minutes on:
(a)at least three (3) evenings each week as nominated by the father;
(b)the child’s birthday; and
(c)Father’s Day.
To facilitate paragraph 11 herein, the Applicant is to provide the Respondent with his nominated communication times in writing within seven (7) days of the date of these orders and, in the event that he wishes to change those nominated times, he shall provide the Respondent with at least seven (7) days written notice.
Both parties be and are hereby restrained from taking illicit substance within 24 hours of or while caring for the child.
Both parties be and are hereby restrained from physically discipling the child in any way.
The Respondent undertake two supervised urinalysis tests over the next two months at her own expense within 48 hours of receiving notice from the Applicant’s solicitor and provide the results of the urinalysis tests to the Applicant’s solicitor forthwith upon receiving them.
The order made in paragraph 15 herein be stayed until 27 July 2010.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Maletta & Bassi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4453 of 2010
| MR MALETTA |
Applicant
And
| MS BASSI |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR MALETTA (“the father”), who is seeking various parenting orders as against MS BASSI (‘the mother”) in relation to the child [X], born [in] 1998 (“the child” or “[X]”). More specifically, the father is seeking orders to the following effect:
a)sole parental responsibility;
b)that the child live with him;
c)that the child spend supervised time with the mother following a drug screening process where no positive readings are recorded.
The father is also seeking orders on an interim basis to suspend the current orders that were made in 1999 and for an Independent Children’s Lawyer (“ICL”) to be appointed.
The father’s application is supported by his affidavit sworn on 13 July and filed on 15 July 2010 (“the father’s affidavit”). He has also filed a Notice of Child Abuse or Family Violence on 15 July 2010 which was faxed to the Department of Human Services by the Court on that day. The father is legally represented by Ms Youssef today.
The mother has not as yet filed a Response however she is legally represented by Mr Boys today and seeks the dismissal of the father’s application and, if unsuccessful, an order requiring the child to be returned to her care and for the proceedings to be transferred to the Brisbane Registry.
The mother relies on her affidavit sworn and filed in Court with leave today.
Background
The father asserts that the parties met in 1996 and commenced cohabitation from mid-1997 until the end of 1998. There is one child of the relationship, [X], born [in] 1998 and currently aged 12 years.
The parties also agree that they entered into parenting orders by consent at [C] Local Court on 18 June 1999, although the Court does not have a sealed copy of those orders currently before it. Nonetheless, the Court does have the benefit of ‘Annexure A’ to the father’s affidavit which is a copy of a document signed by the parties and which states as follows:
“1. that the father have contact with the child every second weekend, 6 pm Friday to 6 pm Sunday, starting 18 June 1999;
2. that the father have contact on the father’s birthday and Father’s Day;
3. that the mother have contact on Mother’s Day and on the mother’s birthday;
4. that the father have contact on the child’s birthday as agreed between the parties;
5. that the father have contact on Christmas Day from 2 pm until 2 pm Boxing Day;
6. other contact as agreed between the parties;
7. that if the child is taken overseas, then the child is to be returned within two months of departure.”
Paragraph 20 of the father’s affidavit states that the mother has moved some 20 times since the orders were made and paragraph 19 asserts that [X] has attended some six different schools since commencing his schooling. The father also asserts and the mother admits that she subsequently formed a relationship with one Mr Bassi, whom it appears she subsequently married but is now separated from. That marriage produced three children: [names omitted].
The father also asserts and the mother admits that she relocated with her three elder children, but not with Mr Bassi, to Northern New South Wales in 2006 and that the parties reached a “verbal agreement”, as described at paragraph 23 of the father’s affidavit, for [X] to spend school holiday time with the father each school holiday period. That is, each school term and the annual school holiday vacation.
It would appear that the mother reconciled with Mr Bassi and that reconciliation produced her fourth child, [name omitted]. As previously stated, the father asserts, and the mother concedes, that the she separated from Mr Bassi in late 2009.
Neither party currently resides with a partner. The father lives alone in a property at [omitted], and the mother lives with the children in a property at [omitted].
The events that bring the matter to Court today stem from the school holiday period recently spent by the child with the father. What is clear is that the father has retained [X] in his care and yesterday enrolled him at [C] High School. The Father filed these proceedings on 15 July 2010, being last week, and as such the Court documents were only served on the mother at that time.
In her affidavit the mother states that because she had concerns around 14 or 15 July 2010 that [X] may not be returned and she consulted with Mr Boys regarding a recovery order. It would appear that this coincided with the service of the documents filed by the husband and the matter coming to Court today.
In other words, these proceedings have come before the Court on an urgent basis, and given that a short period has elapsed and the distances involved, the mother has not been able to file her Response at this stage. That having been said, the mother has attended Court in person today with her solicitor at very short notice indeed.
The issues
The dispute today focuses on the following issues:
a)should the father’s application be dismissed as sought by the mother;
b)should the child be returned to the mother and these proceedings transferred to Brisbane if the father’s application is not dismissed;
c)should the child remain with the father in [C]; and
d)should the matter remain in the Sydney Registry and pending further investigation, a Child Dispute Conference be held and the appointment of an ICL be considered.
Unfortunately, no Child Dispute Conference was available today and the next available date that could have been offered to the parties is 2 August 2010 or in 13 days’ time.
The agreed and disagreed facts
As previously mentioned, there are final parenting orders currently in place affecting the parties and their child. However, it is clear that the parties have varied these arrangements subsequently and that, for some considerable time, the child has been spending all his school holidays with the father and living at all other times with the mother.
The agreed facts between the parties are set out above. The parties appear to disagree about the following:
a)whether the child is at risk in the mother’s care;
b)whether the mother uses illicit drugs and more specifically marijuana;
c)whether the mother physically disciplines or, using the husband’s words, “flogs” the child;
d)whether the child is confused about his wishes or views to be with the other parent; and
e)whether the matter should remain in this registry or be transferred to the Brisbane Registry.
The parties’ submissions
As stated, the father relies on his affidavit and the Notice of Risk of Child Abuse. Ms Youssef submitted that the father’s concerns about [X]’s welfare had emerged late last year and that he had observed a change in the boy’s behaviour, in particular, his poor and apparently violent interaction with his cousins while spending time with his father. Ms Youssef said that the father disputed any assertion that he had been motivated by any child support concerns in his recent actions, and she confirmed to me that her client had instructed her that he had not, presumably as yet, approached the Child Support Agency regarding [X]’s circumstances. Ms Youssef also confirmed that [X] had been enrolled at [C] High School yesterday.
Mr Boys apologised for not being in a position to file a Response by today, given the short listing of the matter. He did, however, ask the Court to allow the mother to rely on an affidavit sworn today, with the leave of the Court. Mr Boys submitted that the evidence did not support such a dramatic change in the child’s circumstances. The allegations of drug taking and “flogging” by the mother are expressly denied. It is submitted that the mother is an asthmatic and on medication, that is, Ventolin, to assist her medical condition. She denies that she is a cigarette smoker. Mr Boys submitted that the father’s unilateral decision to withhold the child from the mother should not be rewarded on the basis of untested evidence which is, as indicated, expressly denied.
In relation to “Annexure B” of the father’s affidavit, Mr Boys asks the Court to question what influence the father may have had in the preparation of the letter written by the child. He questions whether the use of certain words, such as “brainwashed” or “maintenance”, raise suspicions about whether the child was merely a scribe and not the author of the document.
Mr Boys advised the Court that the child is in grade 7 at [S] School, or was until very recently, and has been selected for a state athletics carnival in two weeks’ time at Coffs Harbour.
Mr Boys submitted that if the Court was of the view that the father’s application should not be dismissed at this stage, then the child should be returned today and the matter transferred to the Brisbane Registry where consideration can be given to obtaining the child’s views through the preparation of a family report and if considered appropriate, the appointment of an ICL.
In response, Ms Youssef confirmed that the father was proposing to care for the child with some assistance from the paternal grandparents, who live close by, and that the father is employed Monday to Friday, 8:00am to 5:00pm, as well as on alternate weekends Saturday for half a day. Lastly, Ms Youssef referred the Court again to [X]’s disclosures, and in particular Annexure B of the father’s affidavit, which she stated were “quite concerning”.
The law
The Full Court of the Family Court decision of Goode v Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 of that decision, the Full Court noted, and I quote:
“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 the child.”
This matter is clearly such a case. More specifically, this raises the reality that the Court cannot fully determine issues of credit today as the evidence being presented by the parties has not been tested by cross-examination. That having been said, in the same paragraph, that is, paragraph 81 of the Goode decision, the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act1975 (“the Act”) post the 2006 shared parenting amendments, must be followed at an interim hearing.
There is considerable animosity, it would appear, between the parties in this case, and no doubt the history of the matter will be the subject of evidence and cross-examination at the final hearing should such be needed. In the Court’s view there is no issue of equal shared parental responsibility to determine today. Given the urgent circumstances the dispute today is simply limited to the issues of whether [X] should remain in the father’s care or be returned to the mother’s care and, consequent upon that, which registry will be best to deal with the matter.
The Full Court at paragraph 82 in the Goode decision sets out the approach that this Court must take in determining interim cases. The starting point is to identify the competing proposals, identify the issues in dispute, and identify any agreed or uncontested relevant facts, and I have previously noted these this afternoon. 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.”
Clearly, to determine the child’s best interests, the Court must clearly consider the primary considerations or factors set out in s.60CC(2) of the Act and the additional considerations referred to in sub-s.(3) of s.60CC where relevant. These will be briefly canvassed now.
Primary Considerations: s.60CC(2)
The Court is required under section 60CC(2)(a) to consider:
“...the benefit of the child having a meaningful relationship with both of the child’s parents.”
At this point, it is noted that “meaningful” does not mean “equal” but it clearly signifies that both parties should be involved with their child, or children, and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right of the child’s, as enunciated in the Act. Consequently, the Court will, in all likelihood, need to give some considerable weight to this factor at a final hearing should such be needed.
It is also relevant to the decision of the Court that [X] has three siblings living near [omitted] with whom he has lived. The interests of [X]’s siblings cannot be ignored.
Secondly, the Court is required under s.60CC (2) (b) to consider “the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.” There is no doubt that it would be in [X]’s best interests to develop a meaningful relationship not just with his mother but with his father also. That needs to be balanced, however, in respect of protecting the child from any physical or psychological harm and the like. Given the nature of the allegations here, the Court is satisfied that there is a need to test the issues as to whether [X] has in any way been physically or psychologically harmed. These are issues warranting investigation, and the Court needs to tread cautiously in the interim arrangements that will be necessary today.
The Court has already noted that a Notice of Risk has been filed and sent to the Department of Human Services which will result in an investigation which is important. However, that said, the Court has no evidence before it of any notifications in respect of the family.
Additional considerations: s.60CC(3)
With respect to the additional considerations in s.60CC (3) of the Act, the Court notes that issues such as any “views” expressed by the child and the “nature of the relationship between the child and the child’s parents” and the “willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent” will be flushed out in the fullness of time at a final hearing. The family report and the submissions of the ICL, if appointed, will be crucial in the Court reaching a decision which will finally determine these matters for the parties.
Returning to the issues of the “views” of the child, the Court considers that the views expressed in [X]’s notes need to be fully investigated. The language does seem to be questionable, but, that said, [X] needs to be protected and given a further opportunity to freely express his views.
The Court also notes at this stage that it is required to consider the “capacity of each of the child’s parents to provide for the needs of the child” and the “extent to which the child’s parents have fulfilled or failed to fulfil their responsibilities as a parent”. There are issues here requiring consideration, but, that said, it appears that certainly up until recent times the parties’ orders, which are now almost 10 years old, have apparently served them well and have been varied with the consent of both parties.
The Court is also required to consider “the likely effect of any changes in the child’s circumstances”. In this sense, clearly some change needs to occur. Having children withheld from one parent by the other parent is not, in the absence of evidence to the contrary, presumed to be in the child’s best interests.
Conclusion
Having considered the available evidence in light of the submissions and the structured discretion contained in the Act, the Court is not persuaded that the father’s application should be dismissed at this stage.
The Court is persuaded, however, that [X]’s best interests would be served by returning to the care of the mother, to the household he shares with his siblings, and returning to the school that he has attended this year, pending further investigation. There needs to be proper safeguards in place, however, until the matter is resolved.
Consequently, there will be orders to reflect this decision including an order transferring the matter to the Brisbane Registry.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 18 October 2010
0
0
1