Harris and Finch - [2012] FMCAfam 77

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRIS & FINCH

[2012] FMCAfam 77

FAMILY LAW – Children – parenting orders – family safety issues – appointment of Independent Children’s Lawyer – best interests of the child.

Family Law Act 1975, ss.60CA, 60CC, 68L

Applicant:

MS HARRIS

Respondent:

MR FINCH

File Number:

SYC 7893 of 2011

Judgment of:

Scarlett FM

Hearing date:

13 January 2012

Date of Last Submission:

13 January 2012

Delivered at:

Sydney

Delivered on:

13 January 2012

REPRESENTATION

Solicitor for the Applicant:

Mr Ardino

Solicitors for the Applicant:

Bay Legal

Solicitor for the Respondent:

Ms Shedden

Solicitors for the Respondent:

Watson & Watson

ORDERS

The Respondent Father is to return the child [X], born [in] 2003, to the care of the Mother by 2:00pm on [date omitted].
The Applicant Mother is restrained by injunction not to allow Mr B to be alone in the presence of the child [X] at any time.
Pursuant to the provisions of section 68L of the Family Law Act, the interests of the child [X], born [in] 2003, is to be represented by a lawyer and Legal Aid New South Wales is requested to arrange such representation.
The parties are to forward to Legal Aid New South Wales within seven days copies of all applications, responses, affidavits and other relevant documents to Legal Aid New South Wales for the purposes and use of the Independent Children’s Lawyer when appointed.
The parties are restrained from discussing the proceedings before this Court or the apprehended violence order proceedings before the Local Court of New South Wales with the child.
The Court accepts the undertaking of the Mother not to allow the child [X] to be unsupervised in the presence of Mr L. The Court notes that there are currently apprehended violence proceedings on foot against Mr L.
Costs are reserved.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 7893 of 2011

MS HARRIS

Applicant

And

MR FINCH

Respondent

REASONS FOR JUDGMENT

The Court is dealing with an application by the Mother about a little boy called [X] for a recovery order against the Father. [X] normally lives with the Mother but spends time on a regular and frequent basis with the Father as a result of orders made by consent in this Court on 10^th November 2006. They are detailed orders which probably need some review, in any event. However, that is not a matter for today.
[X] went to stay with his father and his father’s new wife on 23^rd December 2011 and was due to be returned on the 27. However, the Father did not return the child and has explained why in a comprehensive affidavit which he has filed and another affidavit by his wife filed at the same time. The Father raises a specific issue of an alleged assault by the Mother’s friend, Mr B, against the child and raises more general allegations of neglect of the child by the Mother over a period of some time.
The Mother did not raise the allegations of assault herself. In fact, the allegation of the assault was made when the child was staying at the Father’s premises. The Father, in fact, in his response seeks that there should be a change of residence and that [X] should live with him and his new wife. The Mother seeks that [X] should be returned to live with her and with her two other children.
The parties have attended a child dispute conference with a family consultant where the issues have been discussed in detail, although no agreement has been reached. There are certainly what the family consultant has identified as family safety factors. The police have taken out a provisional apprehended violence order against Mr B alleging that he pushed the child, who received bruising when he fell. This apprehended violence order is due to come before the Local Court on Monday the 16^th January 2012.
There is a current apprehended violence order in force by the Mother against her previous partner, Mr L. The children, that is, [X] and his siblings, are protected persons under the interim AVO. That matter is due to be heard this month also, on 25^th January 2012. The Mother seeks to extend the apprehended violence order. It is before the Court and I think not seriously disputed that Mr L does not come into contact with the child. The Mother wants the child returned. The Father has concerns.
The family consultant has raised a concern about the allegations and has recommended that the child’s interests should be independently represented by an Independent Children’s Lawyer under the provisions of section 68L of the Family Law Act. Both Mr Ardino, for the Mother, and Ms Shedden, for the Father, agree that this is an appropriate course to be taken.
I am certainly of the view that it would be of benefit to this child for his interests to be independently represented. His date of birth is [omitted]. His ninth birthday is [on] [date omitted]. He is of an age where an Independent Children’s Lawyer could well assist him and give him some voice in the proceedings, and I am firmly of the view that this is a case where an Independent Children’s Lawyer should be appointed.
The Court must consider the best interests of the child as the paramount consideration. That is clearly set out in section 60CA of the Act. Section 60CC sets out matters which the Court must consider. Primary considerations are the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical of psychological harm from being subjected or exposed to abuse, neglect or family violence. Both neglect and family violence figure prominently in the evidence before the Court at this stage.
Whilst the Father says that the Mother’s parenting of the child is marked by neglect, there is no allegation of violence made against her. It is not alleged that she has been violent to this child, but there is a concern about the Mother’s partner, Mr B. Mr Ardino has told the Court the Mother is concerned about that and will give whatever undertaking is necessary to ensure that the child is safe in the presence of Mr B or in fact any other adult.
There is a need for further information. An Independent Children’s Lawyer with the ability to take a detached view of the circumstances, issue appropriate subpoenas and consider the matter independently of the parties would be able to provide the Court with such information.
The child needs some stability in his life. I am told and I see no reason to disbelieve it that whilst he has been staying with his father he has spoken to his mother on the telephone and had lengthy conversations with her, and the Mother wants him to return home.
The Father has expressed some concerns, especially in the light of the upcoming apprehended violence proceedings and noting the child’s birthday. Against this, he has been staying with his father since 23^rd December 2010 and has not had face-to-face contact with his mother since then. It is also, to my mind, significant that this child has older siblings and should be in a position that he can continue that relationship.
The Father seeks an order that the Mother’s time with the child be supervised and that the child should live with him. I am not of the view that those steps are necessary on the evidence before the Court in order to protect this child from harm. There is, of course, a Court order that provides that this child should live with the Mother.
In my view, arrangements should be made for him to return to the care of his mother so that he can spend some school holiday time with her and so that he can go to school in the normal way at the beginning of term 1.
I propose, therefore, to order that the Father is to return the child [X] to the Mother by 2:00pm on [date omitted]. That is [date omitted]; it is the child’s birthday. He will have the opportunity to spend the morning with his father and stepmother of his birthday. He will then be returned to his mother, and he can spend the afternoon of his birthday with her, and he can then spend the rest of the school holidays with his mother and siblings before going to school.
As I said, I do propose to order an Independent Children’s Lawyer be appointed. I propose, however, to issue an injunction restraining the Mother from allowing Mr B to be alone with the child [X] at any time.
The Local Court will no doubt be interested to hear on Monday what the view that this Court takes of the allegations, and suffice to say that this Court will take notice of any orders made by the Local Court in respect of the application by the police for an apprehended violence order.
Clearly, this Court and the Local Court have similar interests which is, in this regard, the protection of the child from harm. But at this stage, whilst the matter is being investigated, arrangements do have to be made for [X] to return to his mother.
I am not prepared to make a costs order at this stage.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 30 January 2012