Dennis and Herman and Anor
[2012] FMCAfam 367
•13 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENNIS & HERMAN and ANOR | [2012] FMCAfam 367 |
| FAMILY LAW – Recovery order – best interests of the children – wishes of the children – whether unacceptable risk. |
| Family Law Act 1975, s.60CC, 66A |
| Dennis & Herman [2012] FMCAfam 85 |
| Applicant: | MR DENNIS |
| First Respondent: | MS HERMAN |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | SYC 5373 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 April 2012 |
| Date of Last Submission: | 13 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2012 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondent: | Humphreys & Feather |
| Solicitors for the Independent Children’s Lawyer: | Shorehills Legal |
ORDERS
The Respondent Mother is to return the children X born (omitted) 1999 and Y born (omitted) 2001 to the care of the Applicant father at the McDonalds Family Restaurant at (omitted) by 6:00pm on Sunday 15 April 2012.
As provided by s.62G of the Family Law Act the Family Report ordered on 23 September 2011 is to be prepared as a matter of urgency.
The Respondent Mother is to file and serve a Notice of Address for Service and an affidavit setting out details of her new residential address by 20 April 2012.
Liberty to apply in respect of these Orders on forty-eight (48) hours notice.
IT IS NOTED that publication of this judgment under the pseudonym Dennis & Herman and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5373 of 2007
| MR DENNIS |
Applicant
And
| MS HERMAN |
First Respondent
| INDEPENDENT CHILDREN'S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
The proceedings before the Court arise out of an application by the father for the issue of a recovery order for the two children who have now been with the mother for two weeks having been taken from their schools the week before the end of term. This arises out of some disclosures relating to an alleged assault by the father on the child, Y, which led to the mother taking the children to the police station in (omitted), making a complaint which has led to the police issuing a provisional apprehended domestic violence order which is returnable at the local court at Katoomba 9.30 am on Monday, 30 April.
I have read the mother’s affidavit. I have read the father’s affidavit. I have heard the submissions of the Independent Children’s Lawyer who has spoken to the children and conveyed the children’s views. I have heard the submissions of the father and I have heard the submissions of Ms Gunning, the solicitor who appears for the mother. I intend to make orders this afternoon. I make these orders considering the evidence that is before the Court in written form today, noting that the Court is not in a position to make factual findings where matters are in dispute. I make these orders in the context of the previous proceedings where an interim application was heard by me on 11 January and I made quite detailed orders about with whom the children would live and where they would go to school[1]. Pending the final hearing of this matter which is to take place on 18, 19 and 20 July, a family report has been ordered and I will be making orders today that the preparation of that report be dealt with as a matter of urgency.
[1] Herman & Dennis [2012] FMCAfam 85
I will release detailed written reasons for the orders which I propose to make. The time does not permit the enumeration of those orders or the reasons for those orders this afternoon, but I will release those reasons by the end of next week. I have borne in mind the best interests of the children are the paramount consideration as provided by section 60CA of the Family Law Act. The Court determines what is in the children’s best interests by considering the primary considerations set out in subsection 60CC(2) of the Act and the additional considerations in subsection 60CC(3) of the Act.
The Court on any interim application is bound to consider the question of the presumption of equal shared parental responsibility. In my view, it is inappropriate to make any change. To my mind, the issues that arise in the context of an interim hearing, having taken place on 11 January and a final hearing to take place on 18, 19, 20 July, the issues relate to stability in the children’s lives in their arrangements and in their schooling, particularly the question of their residence and with whom they are to live, pending the final hearing. I have considered the wishes of the children as provided to me by the independent children’s lawyer and it is well established by the Family Law Act that one of the ways in which children’s wishes can be communicated to a court is through the medium of an independent children’s lawyer. Another way is through a family report. For a final hearing I will have both of those available.
I have considered the question of risk to the children. I note the terms of the provisional apprehended violence order in respect of the child, Y. I note that the mandatory orders have been made and no other additional orders have been made. I am mindful that the Court has been told today that the children express a reluctance to return to the care of the father, even as far as saying that if a child is ordered to return that she will not go. I have considered the weight I should give to all those things. I am certainly conscious of the degree of risk to children. These issues will be considered in detail at the final hearing in July.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 4 May 2012