Wand and Hutt

[2008] FamCA 1082

FAMILY COURT OF AUSTRALIA

WAND & HUTT [2008] FamCA 1082

FAMILY LAW – CHILDREN – Best interests – whether in the child’s best interests to permit change of name to provide for sole parental responsibility in favour of the paternal aunt – holiday travel for the child

APPLICANT: Ms Wand

RESPONDENT: Ms Hutt

FILE NUMBER: SYC 6775 of 2008

DATE DELIVERED: 8 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 8 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT E Pender

SOLICITOR FOR THE APPLICANT: Shad Partners

FOR THE RESPONDENT: In person

Orders

1. That until further order Ms Wand (“the applicant”) have sole parental responsibility for the child K Hutt also known as K Wand born … September 1999 (“the child”).

2. That the child live with the applicant.

3. That the applicant do all acts and execute all documents to apply to the Registrar of the New South Wales Registry of Births, Deaths and Marriages to amend the registration of the birth of the child to include the name of K Wand.

4. That the applicant may apply for a passport for the child without the consent of the father, Mr Wand, or the mother Ms Hutt.

5. That the child is permitted to travel internationally out of the Commonwealth of Australia for the period 8 to 18 January 2009.

6. That the return date of the initiating application being 6 January 2009 before Registrar Chayna is vacated.

1. That the proceedings are stood over for directions before Registrar Chayna at 11.30am 3 February 2009.

IT IS NOTED that publication of this judgment under the pseudonym Wand & Hutt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC6775 of 2008

MS WAND

Applicant

And

MS HUTT

Respondent

REASONS FOR JUDGMENT

1. In these proceedings Ms Wand (“the applicant”) seeks interim orders in accordance with her initiating application filed 18 November 2008.  The interim orders sought by her are parenting orders in relation to the child, K Hutt, also known as K Wand born in September 1999 (who I shall refer to as “the child”).  The applicant is the paternal aunt of the child.

2. There is evidence before me of these proceedings having been brought to the attention of the father.  The father has provided a written consent in which he consents to what he describes as “legal custody” passing to the applicant.

3. The respondent mother of the child, Ms Hutt (“the mother”) has filed a Response to the Application for Final Orders, as well as to the Interim Orders dated 7 December 2008 and has also sworn an Affidavit in these proceedings on 7 December 2008.  I have read those documents.

4. The matter came before me on an urgent basis on 1 December 2008.

5. On that occasion I heard brief submissions from counsel for the applicant.  The mother appeared by telephone link.  I made orders adjourning the matter for further hearing before me at 2.15 pm today.

6. I also required sealed copies of the Application filed 18 November 2008, the Affidavit of the applicant filed on the same day and the Orders made 1 December 2008 to be served upon the mother by facsimile transmission which might be received by the appropriate officer at the … Correctional Centre.

7. I have been handed an affidavit sworn by the solicitor for the mother deposing to service.  I am satisfied that the order has been complied with.  The mother, who appears before me today by telephone link, acknowledges service.

8. The brief chronology of the care of the child is set out in the Affidavit of the applicant filed 18 November 2008.

9. The child has had a sad history in his young life.  Between 1999 and 2001 the child lived with his parents.  Following that, he moved into the care of the father.  Between 2001 and 2002 the father placed the child in the care of his parents and his sister M.  In 2002 the father removed the child from his family’s care and then again returned the child to their care in 2003.  The paternal grandfather died in 2006.  The paternal grandmother became afflicted by a degree of alcoholism.

10. The applicant, the sister of the father of the child, has participated in the ongoing care of the child since 2003 and has been solely responsible for his day to day care since 2006.

11. In June 2006, following difficulties in the family situation involving the paternal grandparents, the applicant together with her sister M and the child have commenced with living with friends of the applicant.  In October 2006 the applicant together with the child and M moved to a rental property in H where they currently live.

12. It is clear from the evidence before me that when the child first came into the care of the paternal grandparents, the applicant and others, he had serious health problems.  He has been attended to by a paediatrician.  There have been difficulties with his emotional development and in November this year he underwent surgery for amongst other things, hernia repair.  The child has also suffered from separation or anxiety as a result of the death of the paternal grandfather.  He has also had the benefit of ongoing Counselling.

13. During this period of time the mother has had little, if any, involvement in the ongoing care of the child.  That is partly explained by her incarceration in 2003 which continued until she was released in 2006 and again another period of incarceration commencing in November 2008.  The mother informs me that she is due for release in early February 2009 or perhaps sooner.

14. The mother has sworn an affidavit in the proceedings to which I have referred.  Other than a passing reference to Grafton Correctional Centre there was no disclosure at all by the mother of the periods of her incarceration either directly, or by inference.  The Affidavit has complaints regarding her lack of involvement or being prevented from being involved in the ongoing care of the child who is still very young.

15. I find it extraordinary that the mother has omitted to refer to those material matters, but at the same time was able to give sufficient attention to a number of other matters relating to the child's care and her complaints in relation to her lack of involvement in the child's care.  As I pointed out to the mother, in this Court as in other Courts it is an obligation of a party to litigation to provide a full and truthful account of all matters which are relevant to the issues that a Court has to determine.

16. Thankfully, due to the devotion by the applicant to the ongoing care of the child, the child has been showing significant improvement and progress.  That can only have been due to the stable environment in which he has now been placed, the ongoing care of the applicant and her sister, and the dedication that they have shown to his best interests.

17. Amongst the orders that are sought is that the child be permitted to travel with the applicant and others on a cruise for the period 8 to 18 January 2009.  One might have thought that the mother would be pleased to read of the child's progress in the care of the applicant, and would recognise that a cruise in the circumstances that I have summarised could only be for this young child's benefit and enjoyment.

18. Upon being given the opportunity to make submissions in this matter, the mother informed me that having spoken to members of her family, she did not oppose the child travelling on the cruise, provided that arrangements were also made for unspecified members of her family to be able to spend time with the child.  As I pointed out to the mother, this is not a matter for negotiation.  Either it is in the child's best interests to be able to travel on this cruise or not.  It may be in the child's best interests to also spend time with the members of family, yet to be specified, and in circumstances which are yet to be referred to in any affidavit material.  However, that is a separate matter.

19. From a practical and legal view point, in order for this cruise to take place difficulties concerning the issue of a passport linked with the name of the child on his birth certificate must be resolved.  I have concluded that it is in the child's best interests to take part in the cruise.  In order to facilitate that occurring, the orders as sought with a suitable modification or amendments will be made by me to enable the child's name to be changed on the birth certificate with an appropriate order to enable application to be made for the issue of a passport for the child.

20. So far as parental responsibility is concerned, it is abundantly clear on the affidavit material before me that from a practical, physical and emotional viewpoint, parental responsibility has been carried out solely by the applicant with the support of her sister and friends.  There has been no input in that regard by the mother for some years.

21. The practical situation in my view, which I have briefly described, represents the best interests of the child for the purpose of making the order for sole parental responsibility on an interim basis to be placed in the hands of the applicant.

22. As the application before me is for interim orders; I will also make an order for the matter to be listed before Registrar Chayna for further directions at 11.30 am 3 February 2009.  If the matter is still to proceed on a final basis, then the appropriate directions will be made by a Registrar Chayna on that occasion.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  11 December 2008