Ganem and Ganem (No. 3)

[2013] FamCA 267

FAMILY COURT OF AUSTRALIA

GANEM & GANEM (NO. 3) [2013] FamCA 267

FAMILY LAW – CHILDREN – Application for recovery order – Where no interim parenting orders exist – Where matter adjourned for a short period for an interim hearing to determine what interim parenting arrangements be made – Where it is appropriate that the child live with the mother – Where, given the short adjournment, it is appropriate that the child spend no time with the father – Where it is appropriate for an order that the child communicate with the father – Recovery order made but the order not be executed until a specified time to allow that the return be effected without the forcible involvement of the police.

Family Law Act 1975 (Cth)

APPLICANT: Ms Ganem

RESPONDENT: Mr Ganem

INDEPENDENT CHILDREN’S LAWYER: KDB Holmes Solicitors

FILE NUMBER: SYC 931 of 2012

DATE DELIVERED: 24 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 24 April 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mason

THE RESPONDENT IN PERSON: Mr Ganem

SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER: Ms Bedford

Orders

IT IS ORDERED THAT

1. Pursuant to s 67Q of the Family Law Act 1975 (Cth) a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child (K born … December 2006, female) and to return the said child to the Applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where there is at any time reasonable cause to believe that the said child may be found.

2. The recovery order is to remain in force until 24 June 2013.

3. The recovery order is not to be executed by the Marshall or police officer until after 7.00pm today.

4. At 7.00pm today the respondent is to return the child to the applicant at Suburb R Police Station.

IT IS ORDERED PENDING FURTHER ORDER THAT:

1. Mr Ganem is prohibited from again taking possession of the child.

2. The child live with the mother.

3. The father is to have no contact with the child other than telephone contact for 15 minutes twice a week at 6.00pm on Wednesday and Saturday of each week.

4. The respondent is restrained from coming into contact with the child other than as provided in these Orders.

5. That both parties are restrained from:

   a.approaching each other or going within 100 metres of each other;

   b.communicating with the other party other than is provided for in these Orders; and

   c.approaching or going with 100 metres of the residence, place of employment and/or study of the other party.

   d.approaching each other or going within 100 metres of each other at any location;

   e.harassing, molesting, intimidating or stalking the other party.

6. That neither party discuss these proceedings in the presence or hearing range of the child and shall do all such things to ensure that no third party discusses these proceedings in the presence or hearing range of the child.

7. That neither party denigrate the other party in the presence or hearing range of the child and shall do all such things to ensure that no third party denigrates the other party in the presence or hearing range of the child

8. That neither party use physical discipline on the child.

9. If there is an emergency in relation to the child the other parent to be notified by sms as soon as practicable or within 2 hours of the incident. In the event that the child require emergency medical treatment, the parent in whose care the child is at that time, will notify the other parent of the situation immediately and not more than 2 hours after the emergency has come to the attention of that parent.

10. The Application in a Case filed today is stood over to 10.00 am on 17 May 2013.

11. The father is to file a response by 14 May 2013.

12. All parties file and serve any evidence they wish to rely on by 14 May 2013.

13. The Applicant mother is to take the child to a General Practitioner within 48 hours and follow all such treatment and investigations as the doctor directs.

14. The Applicant’s costs application is stood over to 17 May 2013.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 931 of 2012

Ms Ganem

Applicant

And

Mr Ganem

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. These proceedings were brought on urgently today by the mother of K (“the child”) who was born in December 2006.  The child has lived with her mother since her parents separated in May 2010.  Since then, according to her mother, there have been four of five occasions since then that the child has spent time with her father overnight.

3. In her affidavit, sworn today, Ms Ganem (“the mother”) sets out allegations of family violence which resulted in an Application for an Apprehended Violence Order which apparently was before the Local Court yesterday.

4. The evidence of the mother is that the child has not spent any time supervised or unsupervised with Mr Ganem (“the father”) for the last fifteen months.  This matter came before me as a first day less adversarial trial in relation to parenting on 5 March 2013.  Other than for orders restraining the child from leaving the Commonwealth of Australia and her parents taking steps to do so and placing the child on the Airport Watch List no orders in relation to parenting were made on that day.  There was, however, during the course of that day, a discussion about whether or not and in what circumstances the father should spend time with child. Supervised time with the child was proposed by her mother but this offer was not taken up by the father.

5. The mother says that at the Local Court yesterday the father said to the local court magistrate “I want to see my child [K] for the last five days of the school holidays”.  At that time the child was in the care of her 18 year old brother.  Upon leaving the court the mother drove to her home arriving about 1.00pm and saw the father driving out of the driveway with the child in the backseat of the car.  Her son, J, said to the mother, in relation to the father, that “he said was taking the child for lunch” and that he was only taking her for two hours.  The mother then says that she attempted to contact the father a number of times leaving telephone messages, email and text messages without a response.  The father says before me today that he did not get those messages and did not have the correct telephone number for the mother so he could not inform her of what he was doing.

6. I am informed by Ms Bedford, the Independent Children’s Lawyer, that earlier today she spoke with the father and, as she understood it, had arranged with the father to bring the child with him to court and, as I understand, the consequence of that is that the mother is currently travelling from Town L.  In fact, the father did not bring the child with him to court, she remains at his home with his new wife.  The father says he did not do so because he was told that I would not wish to or need to question the child and he formed the view that it was not necessary for her to come in those circumstances.

7. The father has informed me that in the time the child has been with him he has formed the view that she was in significant pain from a chest injury she said she had suffered at a public attraction whilst in the care of the mother. This required him to call a doctor leading the arrangement of an x-ray for tomorrow.  The father did not take the child to the hospital or seek any other form of emergency treatment.  He says that the child has informed him that she is very pleased and happy to be spending time with him, that she was required to stay in a motel room with her mother and her new partner where, in the father words: “she saw them being naked together and doing certain things” and that this new partner had touched the child on her private parts.  The father does not suggest, in response to those allegations, that he has taken any steps.  He indicated to me that he had taken the child because he had not seen her for some time and he proposed to return her to the mother after five days as it would be upsetting if he did not.

8. I propose to list this matter before me on 17 May 2013 for an interim parenting hearing.  So my task today is to determine what is the best course for that next few weeks.  The primary task being to act in the interests of the child.  The child has been living with the mother since May 2010 solely.  The mother is her primary carer, she is a relatively young child.  The child has not spent any time with the father for the last fifteen months. 

9. In those circumstances, it seems to me highly undesirable that a child of that age should be removed from her mother’s care without the mother being present, without the mother’s consent and to be taken to new circumstances.  Whilst it is true that the father is the child’s father, that fact, of itself, does not establish a relationship and one would expect, in the ordinary circumstances, that in order to re-establish a relationship after some fifteen months of time not being spent together the introduction of the child to her father would be done cautiously and gradually.

10. In acting as he has done, the father has not taken into account the effect of his unilateral actions upon the child.  In my opinion, the appropriate course is to restore the status quo until further proper interim consideration can be given to the parenting arrangements.

Conclusion

1. For those reasons I propose to make a number but not all of the orders sought in the mother’s Application in a Case filed today.  The father has agreed that he will return the child to her mother and, as unfortunate a place as it is – it seems to be necessary in the circumstances, for that place to be at Suburb R Police Station and he will do so at 7.00pm tonight.  He has, however, acted unilaterally to remove the child from the mother and again not complied with his proposal to the Independent Children’s Lawyer today to bring the child to court. 

2. In those circumstances I think it is appropriate to make a recovery order authorising the police, if necessary, to take whatever steps to recover the child if she is not returned at 7.00pm.  I will order that that order not be executed until 7.00pm today because it his highly desirable and in the child’s interests that she be returned to her mother and it not be done with the forcible involvement of the police.

3. I will make an interim order that the child live with her mother.  Given the history of the relationship, as set out in the affidavit of the mother and also the actions of the father over the last few days, I will also make orders restraining the parties from approaching each other and the other orders that are contained in paragraph 15 of the mother’s Application in a Case.

4. The issue then is whether or not there should be an order for the father to have time with the child.  The order that was proposed by the mother is firstly that there be no contact or alternatively that there be supervised time with the child no more than once a month on the terms otherwise set out in the order.

5. Given that this matter is returning to me on 17 May 2013, when a proper interim arrangement will be arrived at, I do not propose to make an order for time in the interim but had I adjourned this matter for a longer time I would have made an order for supervised time along the lines of the alternative regime proposed to paragraph 10 as sought by the mother. It is appropriate for the father to be in contact with his daughter, however, and I shall make an order for telephone time to be spent with her.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 April 2013.

Associate: 

Date:  29 April 2013