Pita & Anor & Manard & Anor - [2013] FMCAfam 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PITA & ANOR & MANARD & ANOR

[2013] FMCAfam 296

FAMILY LAW – Children – parenting – Vae Tama: Samoan Traditional adoption – separation of ‘gifted’ parents – parental responsibility – application by gifted mother for equal shared parental responsibility with parents – opposed by parents and ‘gifted’ father – consideration of effect of ‘gifting’ upon determination of parental responsibility – definition of parent/adoptive parent and legal effect of traditional adoption – distinction between parents and ‘gifted parent’ – order for equal shared parental responsibility vesting in biological parents only.

FAMILY LAW – Children – parenting – Application for equal or substantial and significant time by Samoan traditional adoption mother – consideration of bond between child and ‘gifted mother’ and child and biological parents – significance of relationships with siblings in biological parents’ home – effect of different financial circumstances in each home and consequences for a child moving between two different households – significance of culture, family and traditional values in biological parents’ home – effect and consequences of different views as to culture, family and traditional values in ‘gifted mother’s home – consideration of long-term effects and difficulties in a child moving between two such homes – effect on relationship with biological parents and siblings if moving between homes – consideration of possible long-term consequences for child and relationship with siblings – preference on balance to have child primarily live in home of biological parents and siblings.

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 61DAC, 61DAE, 65DAA

Tomas and Anor & Murray [2011] FamCA 641
Lansa & Clovelly [2010] FamCA of 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell and Chappell (2008) FLC 93-382

Applicants:

MS PITA & MR E PITA

FirstRespondent:

MS MANARD

Second Respondent:

MR I PITA

File Number:

TVC 120 of 2012

Judgment of:

Coker FM

Hearing dates:

10-12 December 2012

Date of Last Submission:

28 January 2013

Delivered at:

Townsville

Delivered on:

11 April 2013

REPRESENTATION

Counsel for the Applicants:

Mr Honchin

Solicitors for the Applicants:

LA Evans

Counsel for the First Respondent:

Mr Betts

Solicitors for the First Respondent:

KLP Family Law

Counsel for the Second Respondent:

Ms Mayes

Solicitors for the Second Respondent:

Purcell Taylor Lawyers

ORDERS

That the Mother, MS PITA, and the Father, MR E PITA, have equal shared parental responsibility for decisions relating to the major long term issues of the child, [X] born [in] 2008, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name.
That notwithstanding Order 1 herein:
(a)The Mother and Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with them; and
(b)The Aunt shall be responsible for the day-to-day care, welfare and development of the child whilst she is spending time with her.
That the child live with the parents, MS PITA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCAfam 296
Decision Date: 11 April 2013

CaseChat Overview and Summary

This case arose from a dispute between the biological parents and a woman who was traditionally adopted into the family and referred to as the "gifted mother". The parents sought to determine the issue of parental responsibility and the extent to which the gifted mother should be involved in decisions regarding the child's upbringing. The parents opposed the gifted mother's application for equal shared parental responsibility, arguing that the traditional adoption did not confer the same legal status as biological parenthood. The court was tasked with determining the legal effect of the traditional adoption on the gifted mother's parental responsibility, as well as the best interests of the child in terms of their living arrangements and contact with the gifted mother.

The court considered the legal definition of a parent and the distinction between a parent and a gifted parent in the context of Samoan traditional adoption. It was held that while the traditional adoption created a significant bond between the gifted mother and the child, it did not bestow upon her the same legal status as a biological parent. The court also examined the effect of the gifting on the determination of parental responsibility and the importance of the child's relationship with their biological parents and siblings. The court found that the child's primary residence should be with the biological parents due to the stability and cultural values provided in that home, while also recognising the importance of the child maintaining contact with the gifted mother.

The court made orders for equal shared parental responsibility for major long-term issues between the biological parents, while also acknowledging the gifted mother's role in the child's life. The child was to live primarily with the biological parents, with specified times for spending with the gifted mother, including regular weekend visits and additional time during the Christmas school holidays. The court also ordered for telephone communication between the child and the gifted mother, as well as facilitating communication between the child and either party when in the care of the other. These orders aimed to balance the child's need for stability and cultural continuity with the importance of maintaining a relationship with the gifted mother.

Orders

Orders of the court

That the Mother, MS PITA, and the Father, MR E PITA, have equal shared parental responsibility for decisions relating to the major long term issues of the child, [X] born [in] 2008, including but not limited to:

(a) the child’s education (both current and future);

(b) the child’s religious and cultural upbringing;

(d) the child’s name.

That notwithstanding Order 1 herein:

(a) The Mother and Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with them; and

(b) The Aunt shall be responsible for the day-to-day care, welfare and development of the child whilst she is spending time with her.

That the child live with the parents, MS PITA and MR E PITA.

That the child spend time with the Aunt, MS MANARD, at all times as may be agreed and in particular:

(a) For one weekend per month from February to November in each year, being the third weekend from 6.00pm Friday to 8.00am Monday, with the third weekend defined as the weekend which commences with the third Friday in that month.

(b) For one week during the gazetted Christmas school holiday period, being the first week of the holiday period in odd numbered years and the fifth week of the holiday period in even numbered years.

That for the purposes of defining the first and fifth week of the Christmas school holiday period, the following apply:

(a) The first week of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the following Friday;

(b) The fifth week of the gazetted Christmas school holiday period commences from 6.00pm on the Friday 28 days after the conclusion of school until 6.00pm on the following Friday.

That the Aunt have telephone communication with the child at all reasonable times as may be agreed, but failing agreement, between 6.00pm and 6.30pm Monday, with the Aunt to be responsible for making the call to the parents’ phone and the parents to ensure the child is available to take the call in a quiet and private environment.

That the child may communicate with the parents or the Aunt at any time that she is in the care of the other party and the other party will facilitate such communication.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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