Bernsen and Hayes

[2014] FCCA 1127

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERNSEN & HAYES [2014] FCCA 1127

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – recovery order sought – child aged 11 weeks.

Legislation:
Family Law Act 1975 (Cth) ss.11C, 11F,60CA, 60CC

Applicant: MS BERNSEN

Respondent: MR HAYES

File Number: WOC 367 of 2014

Judgment of: Judge Scarlett

Hearing date: 24 April 2014

Date of Last Submission: 24 April 2014

Delivered at: Wollongong

Delivered on: 24 April 2014

REPRESENTATION

Solicitor for the Applicant: Ms Holmes

Solicitors for the Applicant: Verekers Wollongong

The Respondent: In person

ORDERS

UNTIL FURTHER ORDER

1. The Respondent is to return the child X born (omitted) 2014, to the care of the Applicant Mother by 6 pm today.

2. The Respondent is restrained by injunction from removing the child X from the care of the Mother without the consent of the Mother or order of the Court.

3. The child X born (omitted) 2014 is to live with the Mother.

4. The Respondent is to file and serve a response and an affidavit stating the facts upon which he seeks to rely by Tuesday 29 April 2014.

5. In accordance with section 11F of the Family Law Act, the Mother and Father are to attend a child dispute conference with a Family Consultant at the Wollongong Registry of the Court at 2 pm on 12 May 2014, and as provided by section 11C of the Family Law Act, the conference is to be reportable.

6. The application is adjourned to Wednesday 30 April 2014 at 9.30 am for mention before Judge Altobelli.

7. The parties are to have liberty to apply on 24 hours notice.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

WOC 367 of 2014

MS BERNSEN

Applicant

And

MR HAYES

Respondent

REASONS FOR JUDGMENT

1. This Application has come before the Court as an urgent application.  It was indeed filed as recently as yesterday.  A sealed copy of the Application and the affidavit in support were served on the Respondent yesterday.

2. What it is, is an application for a Recovery Order by the Mother in respect of the parties’ child.  The child’s name is X.  He was born on (omitted) 2014.  He is 11 weeks old.

3. It is the Mother’s case that the Respondent Father withheld X on 22 April and has refused to return him to her care. 

4. There are a number of other matters in the Mother’s affidavit relating to what appears to have been a volatile relationship between the parties, which includes an allegation that the Mother did destroy or damage some property of the Father, for which she has been charged with an offence that is returnable before the Wollongong Local Court on Thursday, 1 May, which is one week from today.

5. The Mother is represented by a solicitor.  The Father is not.  He has attended Court without representation, which is not surprising in the circumstances, and he has told the Court that he has consulted a solicitor but she is not in a position to appear for him today and he seeks an adjournment of the proceedings until next Wednesday.

6. The Father has told the Court that it will be his application for orders that this child should live with him.

7. The Father has told the Court that it is not simply a case of his refusing to return the child, who was spending time with him because he is the child’s father.  Rather, he says that it was the Mother who told him to take the child and indicated to him by text or other message that she no longer wanted to have the child.  This is not agreed by the Mother and, indeed, it is denied.

8. The Father also says that whilst he does not doubt the Mother’s parenting skills, he fears that she has threatened to relocate from the (omitted) area with the child and he will be unable to see his child further.

9. He is also of the view that the Mother is not particularly stable.  He says that she suffers from depression, which is conceded, and that she also suffers from what appears to be bipolar affective disorder, which is denied.  The Mother’s solicitor has told the Court that the Mother is taking medication for the depression and it is being controlled in that way. 

10. The Mother also indicates, through her solicitor, that she owns her own home and that she has no intention of relocating the child’s residence away from this area.

11. I am not satisfied that at this stage there is any hard evidence that the Mother does intend to depart the area with the child and relocate the child’s residence elsewhere, and whilst these proceedings are pending she would be very unwise to do so.

12. The best interests of the child are the paramount consideration. This is set out in section 60CA of the Family Law Act 1975 (Cth). Section 60CC of the Act tells the trial court how to ascertain what the best interests of the child are, and one of the primary considerations is the benefit to the child of having a meaningful relationship with both parents. It is also a consideration, and a very important consideration, that the child is protected from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.

13. These are very early days.  If it is the Father’s intention to apply to the Court that X should be with him, then the appropriate course for him to do is to bring application to the Court, supported by affidavit evidence.

14. I have said before in this very Court as recently as today that parties should not take matters into their own hands.  If there is to be a change of residence of a child, it should be done with the knowledge and approval of a court of competent jurisdiction, namely, this Court.

15. I am particularly concerned about the age of this child.  He was born on (omitted) this year.  He is a very young child.  At the moment, he is at the Father’s home in the care of his mother who, no doubt, is making a good effort at looking after him, but for the Father to take on the fulltime responsibility of looking after a baby is a very big ask.

16. The evidence before me, one-sided though it may be, is that the Mother has been this little boy’s primary care giver since he was born.  Admittedly, that was only 11 weeks ago, but there is a need to build up an attachment to a care giver and to put the child into a proper routine.

17. The first thing to be done is for the child to be returned to the Mother.  That is going to happen by 6 o’clock tonight.

18. If the child is not returned, the Mother will have liberty to apply to the Court on 24 hours’ notice for the issue of a Recovery Order.  That is something to be avoided, because a Recovery Order is, in fact, an order to the police to go out and apprehend the child.  It is not a pleasant procedure and it can be particularly distressing for a child, particularly a little child.

19. I would hope that it would not come to that, but this Order to return the child is to be complied with today by 6 pm.

20. I will give the Father the opportunity to file documents to set out his side of the case with the assistance of the solicitor whom he has consulted.

21. I will adjourn the matter until Wednesday, so that the father can attend Court with his solicitor.  The matter can then be considered before my learned colleague, Judge Altobelli, who will be sitting here on Wednesday.

22. What is important, however, in respect of this dispute about this little child, is that the parties should attend a child dispute conference with a Family Consultant at the Wollongong Registry.

23. There is an appointment available at 2 pm on 12 May 2014 and I propose to order that the mother and the father attend that conference with the family consultant, who will provide a report to the court.  That report will also be made available to the parties’ legal advisers, who will find it helpful in advising their client as to the proper way for this matter to proceed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  24 April 2014