Brayton & Brayton (No 3)

[2017] FamCA 1129

FAMILY COURT OF AUSTRALIA

BRAYTON & BRAYTON (NO. 3) [2017] FamCA 1129

FAMILY LAW – CHILDREN – Best Interests – Application for recovery order – Where an order was made for the delivery up of the child to the wife – Where, upon delivery by the husband, the child was highly distressed and anxious and threatened to run away from the parents – Where the child was admitted to hospital to be sedated – Where delivery of the child was unsuccessful – Recovery order issued to lie until the date allocated.

Family Law Act 1975 (Cth) ss 67U, 67V

APPLICANT: Ms Brayton

RESPONDENT: Mr Brayton

INDEPENDENT CHILDREN’S LAWYER: Mr Butters

FILE NUMBER: SYC 5516 of 2017

DATE DELIVERED: 20 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 20 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

IT IS ORDERED

1. That the Husband have leave to make an oral application to vary or suspend Orders 9, 10, 11 and 12 of 19 December 2017.

2. The oral application be dismissed

3. That a Recovery Order be issued pursuant to the provisions of Section 67U of the Family Law Act 1975 (Cth) and:-

   (a)       The Marshall of this Court is directed;

   (b)       Members of the Australian Federal Police are directed;

   (c)Members of the New South Wales Police Force are requested and authorised;

   To find and recover the child, C born on … 2008 and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found and if necessary to use force to recover the child and return him to the Wife.

4. That the operation of the recovery order be stayed until 9:00 am on 26 December 2017.

5. In the event that the Husband has not returned the child to the Wife by 8:00 am on 26 December 2017 the Wife is to inform the Australian Federal Police and the New South Wales Police of that fact and request that the recovery order be implemented if that is her wish.

6. Order 10 of 19 December 2017 be discharged.

7. In the event that C returns to the Wife prior to 22 December 2017 Order 11(a) of 19 December 2017 be suspended in so far as it relates to C.

8. That both parties do all acts and things necessary to permit the children to attend upon therapeutic sessions to be facilitated by Mr O or Ms Q at R Centre and in the event the named therapists are not readily available such other person as recommended by Dr V.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brayton & Brayton (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5516 of 2017

Ms Brayton

Applicant

And

Mr Brayton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for a recovery order to issue in relation to C (“the child”).  The child was born in 2008.  After a defended hearing on 18 December 2017, on 19 December 2017 I made a series of parenting and related orders in relation to the child and his older sister (“the children”).  Relevantly, orders were made for the children to live with Ms Brayton (“the wife”) (Order 9) and requiring Mr Brayton (“the husband”) to return the subject child to the wife by 9 am today (Order 10). 

2. As I explained in my reasons for judgment given orally yesterday, arrangements were made for the child to spend the weekend commencing 22 September 2017 with the husband.  While with the husband, the child requested the wife allow him to stay an extra night, which she did.  Further requests were made during the week and agreed until the wife said it was time that the child returns to her and his sister.  The child refused and with the husband’s agreement he has been with him ever since. 

3. I accept that the child wishes to remain in the husband’s care, but as I said in my reasons for judgment yesterday, I am satisfied that it is in the child’s best interests to return to the wife’s primary care.  It was anticipated that the child would not readily cooperate with the order which required the husband to return him to the wife and thus arrangements were made for the parties to meet at the offices of the Independent Children's Lawyer (“ICL”) so that the ICL could explain the orders to the child and possibly make the handover easier for him, his sister and the parties. 

4. Although the husband was able to bring the child to the offices of the ICL, the child refused to leave with the wife.  The parties then departed the premises with the children and, on the version given by the husband and the wife, the most awful scene evolved for the child.  It involved public displays of distress, private displays of aggression, the child threatening to run into the street and the child running away from his parents.  It bespeaks a child not coping with the breakdown of the relationship of his parents. 

5. This morning’s events resulted in the child being taken to M Hospital where he was given a sedative and then taken home by the husband.  The child remains there supervised by a neighbour who is his general practitioner.  I have no reason to doubt the husband’s evidence that the child is in no fit state to be taken from the husband’s care and placed in his wife’s care tonight; the events of the day have simply been too overwhelming for him. 

6. However, the child’s stance, if not his behaviour, is entirely consistent with the information contained in the expert report provided by Dr V.  It is worth noting that Dr V was engaged by the parties to provide expert information to them and to the court about the children and the arrangements that should be put in place for the children in the interim.  The husband expressed the desire this afternoon to receive expert assistance and advice in relation to the children.  The sentiment is worthy, but the fact is the parties have it and so does the Court.  The evidence provided by Dr V relevant to this issue is that the child wants his parents back together and his family to reunite. 

7. Dr V said that the child:

   104. …appears to think it is highly likely that he can make this happen if he continues to refuse to see his mother without his father also being present.

   105. Various comments [C] made suggest that he finds changeovers to be extremely stressful and emotionally overwhelming, not least because he has one parent telling him he does not have to go and another parent telling him that he has to comply with Court orders.

   (Report of Dr V dated 5 December 2017, p 28)

8. And also, that:

   152. The anxiety, distress and emotional outbursts [C] is reported to experience around changeovers and at school, is likely resultant from the effects of the parental separation, associated parental conflict, grief and loss issues and accumulated burden of pressure upon [C] of “choosing” between his parents and his efforts to help them reconcile. 

   (Report of Dr V dated 5 December 2017, p 39)

9. This is current and important information provided by an expert in relation to the child.  It is consistent, as I said, with the events that unfolded this morning and nothing that unfolded this morning, in my view, changes the integrity of the orders that were made yesterday.

10. The husband made an oral application today to vary yesterday’s orders so that the orders of 26 October 2017 would spring into force with the effect that the child remains in the husband’s primary care.  I am satisfied it is in the best interests of the children, particularly C, that that oral application is dismissed. 

11. The question then becomes how to give effect to the orders made yesterday. Pursuant to s 67U of the Family Law Act 1975 (Cth) the court may, subject to s 67V, make such recovery order as it thinks proper. Section 67V provides that in deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration. I discussed in some detail yesterday why I am of the view that it is in the child’s best interests to be reunited with the wife in her primary care and also with his sister, and to then spend regular time with the husband while further investigation about the family’s circumstances is undertaken.

12. I do not consider that it is in the child’s best interests for a recovery order to be issued today or tomorrow.  I am willing to take the husband at his word that he can give effect to the primary order that the child returns to the wife’s care without the necessity of police intervention if he has a few more days to bring his moral authority as a parent to bear on a child who, at the moment, is not responding to the authority of either of his parents.  The course I propose to take is that I will order the recovery order to issue but it will lie until 26 December 2017.  The recovery order will be triggered from that point by the wife providing her written instruction to police that the order for the child to be returned has not been given effect. 

13. I hope, knowing what I do about how these events unfold for children, that police intervention is not required.  I urge the parents to do their best to ensure that the order I make today need not be implemented.  However, if it has to be, it will be. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 December 2017.

Associate: 

Date:  24 January 2018