Bakal and Kapicic (No 2)

[2014] FamCA 554

FAMILY COURT OF AUSTRALIA

BAKAL & KAPICIC (NO 2) [2014] FamCA 554

FAMILY LAW – CHILDREN – Recovery Order – father failed to handover child as previously ordered – father alleges the child too distressed to be returned to mother – best interests of the child – meaningful relationship with both parents – protect from harm - orders providing for the father to spend time with the child during the period of adjournment be suspended – recovery order to issue if the father fails to comply with previous Court orders.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bakal

RESPONDENT: Mr Kapicic

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: ADC 4291 of 2011

DATE DELIVERED: 22 July 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Du Barry

SOLICITOR FOR THE INDEPENENT CHILDREN’S LAWYER Legal Services Commission of South Australia

Orders

1. The father return the child B born on … 2005 to the mother at 5.00 pm today with handover to take place inside the Suburb F Police Station.

2. If the child has not been returned to the mother by 5.15 pm today a Recovery Order is to issue such Recovery order to indicate the child’s address and the father’s address at G Street, Suburb H, SA … and to be returned to the mother at I Street, Suburb J, SA ...

3. During the period of the adjournment the order for the child to spend time with the father is suspended and all consideration of the child’s best interests is adjourned to the date before the Honourable Justice Berman on 6 August 2014 at 9.15 am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakal & Kapicic (No 2) 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 ADELAIDE

FILE NUMBER: ADC 4291 of 2011

Ms Bakal

Applicant

And

Mr Kapicic

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application in a Case which is brought before me this morning, having been filed on 15 July 2014, in which the mother seeks a recovery order and an injunction restraining the father from removing or causing the removal of the child from her care.  The affidavit in support of the application refers to the father’s failure to comply with the orders of this Court made on 11 July 2014. 

2. On 11 July 2014, for reasons which were given on that date, I made an order in relation to the children’s matters, including an order that the father return the child, B, to the mother at 5.00 pm on Saturday, 12 July 2014, inside the Suburb F Police Station.  I further continued at that time the orders of 27 May 2013, which were in place.  I made other orders which related to the matter being prepared properly for what was then a date which had previously been fixed before Justice Berman on 6 August 2014. 

3. It is not denied that the father has failed to comply with the orders of 11 July 2014.  Without filing any affidavit material, he raises from the bar table today what he says is his reason, which relates to the child being distressed when told that the child was to be returned to the mother.  I have the submissions from the Independent Children’s Lawyer’s counsel which supports the return of the child to the mother’s care.

4. As I indicated previously in the earlier reasons, there are significant issues to be determined in relation to the parties’ capacity to provide for the needs of the child and my ongoing serious concern for the findings and the facts which are in dispute, concerning the parties’ ability to carry out their roles as parents.  As I said on the last occasion, the concerns were such that I have made an order pursuant to section 91B requesting the Minister to intervene, to assist this Court in protecting the interests of the young child.

5. B was born in 2005.  The difficulties the child has faced are clearly set out in the previous affidavit material.  I have not been provided with any evidence today which would suggest that it is appropriate for the father to continue to disobey the orders of this Court.  I propose to make an order that will provide for the child to be returned to the mother today and if the child is not returned at that time, then a recovery order will issue. 

6. I am concerned about the issue of recovery order in most cases because it involves the child being subjected to what would appear to be arrest by police officers.  But if the father is unable to carry out his obligations to comply with Court orders and make arrangements for the child to be returned in a sensible way to the mother, then there will be little alternative, unfortunately but for the Court to have the recovery order issued. 

7. In relation to the question of the ongoing orders of 27 May 2013, which provided for the father to spend time with the child, I take into account that the father has not returned the child and has not complied with those orders over a period of some weeks and that the matter is listed before Justice Berman in approximately two weeks’ time, on 6 August 2014.

8. The Court has to consider what is in the best interests of the child.  The primary considerations include ensuring that the child has the ability to have a meaningful relationship with both of the parents.  The most significant consideration is the need to protect the child from harm.  Weighing all of those factors up and taking into account the time which the child has been denied a meaningful relationship with the mother, I am satisfied that pending the hearing on 6 August 2014 it is in the child’s best interests that the orders providing for the father to spend time with the child be suspended.

9. There are already orders in place that deal with the filing of further documents and for the parties to confer with the Independent Children’s Lawyer about treatment.  I do not need to make those orders again.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 July 2014.

Associate: 

Date:  23 July 2014