BEWICK & BEWICK

[2015] FCCA 814

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEWICK & BEWICK [2015] FCCA 814

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – recovery order – whether recovery order should issue – child aged 13 years and 8 months – best interests of the child.

Legislation:
Family Law Act 1975 (Cth), ss.11C, 11F, 67Q, 68L

Applicant: MS BEWICK

Respondent: MR BEWICK

File Number: SYC 7099 of 2011

Judgment of: Judge Scarlett

Hearing date: 16 March 2015

Date of Last Submission: 16 March 2015

Delivered at: Sydney

Delivered on: 16 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Lees

Solicitors for the Applicant: Mark Whelan Lawyer

Counsel for the Respondent: Mr Hodgson

Solicitors for the Respondent: MCW Lawyers

ORDERS

1. As provided by s.11F of the Family Law Act the parties are to attend a Child Dispute Conference with a Family Consultant at 9:00am on 11 May 2015 and pursuant to s.11C of the Act the conference is to be reportable.

2. That as provided by section 68L of the Family Law Act 1975 the interests of the children [X] born [omitted] 2001 and [Y] born [omitted] 2003 are to be independently represented by a lawyer and Legal Aid NSW is requested to arrange such representation.

3. The parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed within fourteen (14) days from the date of these Orders.

4. The Independent Children’s Lawyer is granted leave to issue up to 10 subpoena without charge or further leave.

5. The Application is adjourned to Wednesday 13 May 2015 at 10:00am for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 7099 of 2011

MS BEWICK

Applicant

And

MR BEWICK

Respondent

REASONS FOR JUDGMENT

1. This application concerns a child called [X], who was born on [omitted] 2001.  She is about 13 years and eight months of age.  Though she has been living with her mother under previous orders, at the moment she is living with her father, and on the evidence before me, she has chosen to live with her father. 

2. It appears that there has been some form of a disagreement between [X] and her mother.  I will not go so far as to say that it is an estrangement, but at this stage the child is refusing to attend school, a private school called [omitted], which is indeed a well-known school in Sydney.  As there is no agreement between the parents as to any other school, she is currently not attending school.  This is a situation that cannot continue. 

3. There is evidence this child has been treated for an acquired brain injury, and the mother has put the view that before other procedures are put in place – which would require the child to exercise some decision-making capacity – that there should be further tests conducted. The mother is of the view that the father, albeit being a medical practitioner, has tended to downplay the seriousness of the matters affecting the child. The mother seeks a recovery order to issue under the provisions of section 67Q of the Family Law Act.

4. First of all, the recovery order.  It is a very serious step to take.  One of the matters that a court must consider when deciding whether or not to issue a recovery order is the best interests of the child concerned.  Contrary to the submission that has been put to me on behalf of the applicant, I would have great concern that the issue of the recovery order requiring the Federal Police to go out and return the child to the care of the mother under duress could well have a detrimental effect on this child’s relationship with her mother. 

5. I accept the fact that it is the mother’s view that the father is not doing enough to support [X]’s relationship with her mother, but I cannot be satisfied that a recovery order would be in this girl’s best interests.  It may well be that there is a need for further examination in respect of the progress of this child’s recovery from her acquired brain injury.  In my view, the Court would require to have some specialist medical evidence before making a decision that this child should undergo any medical tests. 

6. I am not satisfied that it is necessary for such tests to be conducted before making a decision as to whether or not this girl’s interests should be independently represented by a lawyer under the provisions of section 68L of the Family Law Act, or whether she would be in a position to attend a child-inclusive child dispute conference with a family consultant.

7. If this child has difficulties relating to decision-making as a result of the brain injury, it would seem to me that a specialist independent children’s lawyer would be able to understand and make allowances for that, and it would seem to me that a family consultant would be alert to find out if there were such symptoms. 

8. I note the mother’s wish – although it is not apparently contained in an Application in a Case, but nevertheless the application has been brought orally by her counsel – for there to be some orders that the child should spend time with the mother.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 April 2015