EGGERS & SAGAN
[2013] FMCAfam 2
•4 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EGGERS & SAGAN | [2013] FMCAfam 2 |
| FAMILY LAW – Children – recovery order – Notice of Abuse, Family Violence, and Risk of Family Violence filed – family violence allegations – family violence orders in place – child aged 4 years 3 months – where applicant mother primary caregiver to the child since child’s birth – allegations of alcohol abuse – parental responsibility – presumption of equal shared parental responsibility does not apply where reasonable grounds to believe parent of the child has engaged in family violence – sole parental responsibility. PRACTICE AND PROCEDURE – Urgent Application – leave granted to proceed ex parte – orders made until further order. PRACTICE AND PROCEDURE – Notice of Child Abuse, Family Violence or Risk of Family Violence filed – Court must take action as soon as practicable after Notice filed – where orders made the day the Notice was filed. WORDS AND PHRASES – “any other person concerned with the care, welfare or development of the child” – similar meaning in Family Law Act 1975 (Cth) as in s.65C(c) – threshold test. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65C,67Q, 67T, 67V, 67ZBA, 67ZBB Federal Magistrates Court Rules 2001 rr.5.01, 5.03 |
| KAM v MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847 |
| Applicant: | MS EGGERS |
| Respondent: | MR SAGAN |
| File Number: | SYC 28 of 2013 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 January 2013 |
| Date of Last Submission: | 4 January 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ramjas as Duty Lawyer |
| Solicitors for the Applicant: | Legal Aid NSW |
| Respondent: | No appearance |
ORDERS
UNTIL FURTHER ORDER
Leave granted to proceed ex parte.
The Applicant Mother is to have sole parental responsibility for the child [X] born [in] 2008.
The child [X] born [in] 2008 is to live with the Applicant Mother.
A Recovery Order is to issue pursuant to section 67Q of the Family Law Act1975.
The Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police are authorised and directed with such assistance as they require and if necessary by force:
(a)To stop and search any vehicle, vessel or aircraft and search any premises or place for the purpose of finding the child;
(b)To recover the child;
(c)To deliver the child to the mother;
(d)To arrest without warrant the father in the event that the father again removes and takes possession of the child.
The Applicant must serve a sealed copy of the Application, her affidavit in support, the Notice of Child Abuse, Family Violence, or Risk of Family Violence and these Orders on the Respondent by 11 January 2013.
The Application is adjourned to Thursday, 17 January 2013 for further mention in Court 3A at 10:00 am.
IT IS NOTED that publication of this judgment under the pseudonym Eggers & Sagan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 28 of 2013
| MS EGGERS |
Applicant
And
| MR SAGAN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for a recovery Order by the Mother of a little boy called [X], who is four years and three months old. She also seeks orders on an urgent basis that:
a)[X] should live with her; and
b)[X]’s father should return him to her immediately.
The Application arises because the Mother claims that the Father refused to return [X] to her after having spent time with him on Christmas Day 2012.
Background
The Mother was born [in] 1989, so she is currently 23 years old. She deposes in her affidavit of 4th January 2013 that she is an Indigenous Australian woman from the [B] area in New South Wales[1] although she grew up in [omitted], a suburb of Sydney.
[1] Affidavit of Ms Eggers 4.1.2013 at paragraph [2]
The Mother deposes in her affidavit that she met the Father in [B] and commenced a relationship with him in 2006. He was born [in] 1989, so he, too, is 23 years of age, just 8 days younger then the Mother.
There is one child of the relationship, [X], who was born [in] 2008.
It is the Mother’s evidence that she and the father lived together in the [E] area, about 100 kilometres north of [B], until [X] was about 8 months old, in about May 2009. The Mother moved to [omitted] and lived there with the child for three years. The Father remained living in [E] but would stay with the Mother for a few months at a time while they attempted to reconcile their relationship.
In June 2012 the Mother moved to Sydney to live with her mother.
On the way to Sydney, the Mother stopped in [D], where she unexpectedly met the father. She claims that he had been drinking alcohol and punched her and bit her on her face. She was treated at [omitted] Hospital. On 10th August 2012 the Local Court of New South Wales at [D] made a final Apprehended Violence Order against the Father, naming the Mother and [X] as Protected Persons. That Order is in force for two years.
The Mother deposed that members of the Father’s family pressured her to resume the relationship with the Father. On 6th December 2012 the [B] Local Court made a final Apprehended Violence Order against the Father’s sister, Ms S. That order is in force for a period of 6 months.
The circumstances of the child going into the care of the Father are set out in paragraphs [24] to [29] of the Mother’s affidavit. She deposes that she travelled to [B] with [X] for Christmas. She agreed with the Father that he could spend some time with the child on Christmas Day. The Father refused to return the child to her. On 27th December the Mother drove to the house in [E] to try to collect the child.
The mother states that the Father refused to return the child to her and an argument developed. The Father’s partner, a woman named Ms W, became involved in a struggle with the Mother, who claims that she hit her twice on the forehead. An altercation developed between the two women, who exchanged a number of blows. The Police were called and they have sought an Apprehended Violence Order against the Mother on behalf of Ms W. That Application is returnable at [B] Local Court on Thursday 10th January 2013.
The Mother told the Court in her oral evidence that she intends to defend the application for an Apprehended Violence Order.
Evidence
The Mother relied on her affidavit of 4th January 2013, which was prepared for her by a lawyer from Legal Aid NSW. She has also filed a Notice of Abuse, Family Violence, or Risk of Family Violence under section 67ZBA of the Family Law Act.
The mother gave oral evidence and affirmed the truth of the matters in her affidavit.
The Law to be applied in Applications for Parenting Orders and other Applications Concerning Children
Section 60CA of the Family Law Act requires the Court, when considering making a parenting order, to regard the best interests of the child as the paramount consideration.
The Court determines what is in a child’s best interests by considering the matters contained in subsections (2) and (3) of s.60CC of the Act, giving greater weight to the primary consideration set out in paragraph (b) of s.60CC(2):
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
When making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA(1)). However, s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence.
Where, as in this case, a party has filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence under s.67ZBA of the Act, s.67ZBB requires the Court to take action as soon as practicable after the notice is filed. In this case, orders have been made on the same day as the Notice was filed.
A recovery order is made under s.67Q of the Act, and is an order made by the Court requiring the return of a child to a parent or other people in whose favour a parenting order has been made.
The persons who may apply for a recovery order are described in s.67T, which states:
A recovery order in relation to a child may be applied for by:
(a)a person with whom a child to live under a parenting order; or
(b)a person with whom the child is to spend time under a parenting order; or
(c)a person with whom a child is to communicate under a parenting order; or
(caa)a person who has parental responsibility for the child under a parenting order; or
(ca) a grandparent of the child; or
(d)any other person concerned with the care, welfare or development of the child.
A parent cannot apply as of right unless there is already a parenting order in existence in favour of that parent. It would appear that the legislature intended the same threshold test to apply in s.67T(d) as applies in identical wording in s.65C(c)).
The description of a “threshold test” was first used by Burr J when discussing s.65C(c) in KAM v MJR[2]at 667:
In order to proceed beyond the mere making of the application, the applicant for a parenting order must demonstrate that they are “a person concerned with the care, welfare or development of the child. In my view this imposes a threshold test to be determined on the individual facts and circumstances of each case.
[2] [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847
The same consideration must apply in s.67T(d). It would not usually be difficult for a parent who has been the primary caregiver of a child to demonstrate that he or she is “a person concerned with the care, welfare and development of the child”.
The court must regard the best interests of the child as the paramount consideration when deciding whether to make a recovery order (section 69V).
Conclusions
The Application has been brought as an urgent application under Rule 5.01. Rule 5.03 requires the application to be supported by an affidavit which establishes the reasons for urgency, which has been done in this case.
The Mother has given evidence that she is this child’s primary caregiver and has been so all her life. She has given evidence that the Father has refused the child [X] to her, in circumstances of violence. There is evidence of family violence orders in operation.
Paragraph (h) of s.60CC(3) applies where the child concerned is an Aboriginal child. It requires the Court to consider the child’s right to enjoy his Aboriginal culture and the impact of any proposed parenting order on that right.
Here, the child’s mother and father are both Aboriginal. There is nothing to show that [X] will not be able to enjoy his Aboriginal culture when living with his mother and maternal grandmother.
The evidence before the Court is that the Father has refused to return the child to his mother, with whom he has been living all his life. Parties cannot just “take the law into their own hands”. If the Father wishes to spend time with his child, it must be done by arrangement with the Mother or, if that cannot take place, by means of parenting orders made by the Court.
I am satisfied that it is in [X]’s best interests to live with his mother until further order and for her to have sole parental responsibility for him. The question of parental responsibility will be reconsidered when final orders are made (see s.61DB).
I am also satisfied that it is in [X]’s best interests for a recovery order to issue to return him to the care of his mother.
The matter will return to Court on Thursday 17 January, by which it is anticipated that [X] will have been returned to his mother.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM.
Associate:
Date: 8 January 2013
0
0
2