MALETTA & BASSI

[2012] FamCA 778

FAMILY COURT OF AUSTRALIA

MALETTA & BASSI [2012] FamCA 778

FAMILY LAW – CHILDREN – Orders – Variation – Where the Father sought Orders for contact – Where the Father has filed a notice of discontinuance – Where the Mother has not filed any material – Where the Mother and Independent Children’s Lawyer are seeking Orders allowing the child to travel overseas – Orders varied to include such Orders relating to overseas travel – No further Order to be made on evidence available

APPLICANT: Mr Maletta

RESPONDENT: Ms Bassi

INDEPENDENT CHILDREN’S LAWYER: Ms Barbara Fox, Solicitor

FILE NUMBER: SYC 4453 of 2010

DATE DELIVERED: 5 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 5 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance by the Applicant Father

COUNSEL FOR THE RESPONDENT: The Respondent Mother appearing by telephone (not legally represented)

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Hodges of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Barbara Fox Solicitor

Orders

UPON THE APPLICANT FATHER FILING A NOTICE OF DISCONTINUANCE ON 15 JUNE 2012

IT IS ORDERED THAT:

1. The Order of Federal Magistrate Monahan made 20 July 2010 be varied to include Orders (2) to (5) hereof.

1. The Mother be at liberty to travel with the child, X born … April 1998, overseas on the provision of twenty-eight (28) days notice to the Father.

2. The Mother provide to the Father the following information if she elects to travel with the child overseas:

a.a copy of the child’s return airline ticket; and

b.a copy of the travel itinerary.

1. The Father execute a passport application for the child within fourteen (14) days upon presentation of such application by the Mother.

2. In the event the Father refuses to or neglects to execute the passport application (or renewal application) as required by Order (4) hereof, a Registrar or Deputy Registrar of the Court be appointed pursuant to s 106A of the Act to execute the passport application in the name of the Father and to do all acts and things necessary to give validity to the operation of the passport application.

IT IS FURTHER ORDERED THAT:

1. The Independent Children’s Lawyer be discharged.

1. The matter be removed from the list of cases awaiting finalisation.

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maletta and Bassi 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: SYC 4453 of 2010

Mr Maletta

Applicant

And

Ms Bassi

Respondent

REASONS FOR JUDGMENT

1. My view is that this is an application which is doomed to failure.  The applicant father made an application for various orders in relation to contact with a child of his relationship with the mother, X, who was born in April 1998 (“the child”).  He is now over 14 years of age.  There has been little or no contact by the father with the boy who has been living with his mother, Ms Bassi, the respondent to this application.  The matter was before the court on 20 July 2010, when Monahan FM made orders on that date for joint parental responsibility, the child to live with the father, and other orders in relation to contact.

2. Since that, as I have said, there has been little contact with the father and it appears as though the boy’s attitude is anti the father.  I have had only two pieces of material put before me.  Both are reports of Mr R.  Mr R is a family consultant who has had vast experience in this court and, in his final report which was dated 17 November 2011, he at the final paragraphs, being 35 and 36, was of a view that the child’s welfare was such that he should be put into the possession of his father, notwithstanding a particularly strenuous objection on the part of the child to this being the case.

3. Mr R is of the view that the child was at a risk to stay with his mother and, naturally, of course, I refer to and incorporate in these my reasons for judgment the findings and the evidence that was put before Mr R.  No other evidence has been put before me.  On 15 June this year, the applicant father filed a notice of discontinuance.  Obviously, there is no evidence from him in relation to any evidence that he wished me to consider to support his claims.  He no longer is before the court.  The mother has seen fit not to file any material before this court.  She is saying, first of all, she did not know and, secondly, that since the notice of discontinuance was filed she was unable to avail herself of the tax funded legal aid. 

4. Consequently, the only evidence I have before me is the evidence of Mr R.  Mr R’s evidence, as I have said and I emphasise, is that he is of the view that the child should live with the father.  The father has not prosecuted his application.  The mother has not put any material before the court.  How can I possibly make an order which has been put before me signed by the respondent mother and the independent children’s lawyer in which there are orders sought to the effect that the child live with the mother?  I could not on the evidence before me make such order.

5. Secondly, that the parties have equal shared parental responsibility.  That in itself, I would have thought, is an order they would have made, should I be satisfied that there is a valid application before me.  There is no evidence that there is, in fact, a contra application before me.

RECORDED   :   NOT TRANSCRIBED

1. And, thereafter, there are other various orders in relation to contact should the parties agree for the child to have contact and machinery provisions in relation to the child’s report cards, etcetera.

2. There is, however, at paragraphs 6 to 9 inclusive orders which both the independent children’s lawyer and the mother seek in relation to the child being allowed to travel overseas.  I make it quite clear initially that insofar as the draft order is concerned, I cannot be persuaded to make such an order since the only evidence before me is totally opposing such an order, other than that there be joint responsibility for the child.  The previous order, as has been pointed out by Hodges of counsel, who appears on behalf of the independent children’s lawyer, ordered that the parties have equal shared responsibility and the child live with the mother.  I will not interfere with such an order.  And that the child spend time by way of contact with the father in accordance with orders 10 and 11.

3. It has fallen from the mother by way of telephone that, in fact, the father does not answer any of the telephone calls of the child.  That has obviously been put in dispute by Mr R who believes that in all probability the child did not ring his father.  However, I can see no reason why the original order of the learned Federal Magistrate should be interfered with, save, as I have said, for those matters which are contained in the proposed orders 6 to 9.  There could be difficulties for the mother should she wish to travel overseas with the child, and I am of the view that overseas travel, particularly for children as they get older, is of vast importance for them. 

4. Consequently, notwithstanding that the order is proposed to be by consent of the parties, I note the amended response of the mother filed 14 November 2011 and I emphasise the report of Mr R, I will take it upon myself to vary the order of the Federal Magistrate of 20 July 2010, to insert as an extra the orders as sought by the mother and the independent children’s lawyer contained in 6 to 9 inclusive.  Otherwise, the application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 5 September 2012.

Associate: 

Date:  5 September 2012