ABLES & ABLES
[2010] FMCAfam 1017
•10 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABLES & ABLES | [2010] FMCAfam 1017 |
| FAMILY LAW – Children – interim orders – two children aged 2 years and 7 months respectively – family violence order in place – allegations of mental health issues in respect of each parent – need for children’s interests to be separately represented. |
| Family Law Act 1975 |
| Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MS ABLES |
| Respondent: | MR ABLES |
| File Number: | SYC 4812 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 August 2010 |
| Date of Last Submission: | 10 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Jenman Lawyers Inc. Karageorge & Co Solicitors |
| The Respondent: | In person |
ORDERS
The applicant mother and the respondent father are to have equal shared parental responsibility for the children [X] born [in] 2008 and [Y] born [in] 2010.
The father is to deliver the said children to the mother at her residence at [E] NSW by 9.00 am on Wednesday 11 August 2010.
The said children are to live with the mother on alternate days commencing by living with the mother from 9.00 am on Wednesday 11 August until 9.00 am on Thursday 12 August and thereafter with the father until 9.00 am on Friday 13 August and alternating thereafter.
Changeover is to be supervised by [Mr H] or, if he is unavailable, [Ms L] or [Mr L].
The parties are restrained from denigrating or criticising each other in the presence of the children.
The interests of the children [X] born [in] 2008 and [Y] born [in] 2010 are to be independently represented by a lawyer in accordance with s 68L of the Family Law Act and Legal Aid NSW is requested to arrange such representation.
The parties are to forward to Legal aid NSW for the use of the Independent Children’s Lawyer when appointed copies of all affidavits, applications, responses and copies of all current apprehended family violence orders within 14 days.
The application is adjourned to Monday 20 September for further mention at 11:30 am
IT IS NOTED that publication of this judgment under the pseudonym Ables & Ables is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 4812 of 2010
| MS ABLES |
Applicant
And
| MR ABLES |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of two little boys, [X], who is just two years of age, and [Y], who is only seven months old, for orders immediately returning them to her care.
The father opposes these orders.
Issues
Each parent claims that the other is prone to violence and has mental health issues. They have interim apprehended violence orders against each other.
Background
The parties met in [omitted], where the mother was living at the time. The mother moved permanently to Australia in [omitted] 2007 and commenced living with the father. They were married [in] 2007.
There are two children of the marriage, both boys. The older child, [X], was born [in] 2008. The younger boy, [Y], was born [in] 2010.
It appears that the mother suffered from post-natal depression after [X] was born.
The parties separated in acrimonious circumstances on 5th July 2010. There was a physical altercation and the father called the police, who arrested the mother. When she was released later that day, the mother returned home to find that the father had left and taken the children with him.
The mother attended the [omitted] Local Court on 7th July, and from there she went to the [omitted] Health Centre. Arrangements were made for her to enter hospital, where she stayed until 12th July. The father visited the mother in hospital and brought the children with him. However, when she was discharged from hospital the father did not return to the home.
The father visited the mother on 17th July with the children. After an altercation between them, the father called as ambulance. The ambulance took the mother to [omitted] Hospital. The mother was discharged on 19th July. The father returned to the home with the children but left on 21st July, with the children.
The father returned with the children on 25th July. The mother claimed that on 29th July the father left with the baby, [Y]. He went to the child care centre where the child [X] was and went in and took him. The mother took the baby [Y] back but the father left with [X].
Later, the mother claimed that the father took both children and went to live with his sister in [D].
The mother states that the father was diagnosed with depression in April 2009 and has psychiatric treatment.
The parties’ proposals
Each party claims that the other is unsuitable to care for the children and that the children should live with them.
Considerations
The best interests of the children are the paramount consideration (Family Law Act, s.60CA). There are concerns about the parenting skills of each of the parties.
The first thing that must be done is to make orders that restore some stability to the children. It cannot be in the children’s best interests for them to go from one parent to the other as the result of an altercation between the parents. The father seems to have taken the law into his own hands, and that particular behaviour must stop.
The father is not working at present and has the time to provide care for the children. The mother seeks orders that the children be with her. I propose to make temporary orders that will bring about shared care, with the children being cared for by both parents on a day-about basis. I do not see this as a long term solution, but it will ensure that these two very young children will spend frequent time with each parent. It is important for attachment between children and parents to develop, especially in the case of the younger child [Y], who is only seven months old.
There are several matters that lead to the conclusion that it would be in the children’s interest for their interests to be separately represented. There appears to be an intractable conflict between the parents, there are mutual allegations of family violence, and there are apparent issues of psychiatric or psychological illness or personality disorder in relation to both parties (see Re K[1]). The need appears to be even more obvious when it is the case that the father is not legally represented.
[1] (1994) 17 Fam LR 537; FLC 92-461
Accordingly, an order will be made under s.68L of the Family Law Act, requiring the children to be legally represented and requesting assistance from the Legal Aid Commission to arrange this representation.
The matter can be looked at again on Monday 20th September, when it is hoped that an Independent Children’s Lawyer will be appointed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 17 September 2010
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